your honour's i'm joker's i represent to live in you and me please the courts morning appellants first application for disability benefits was filed on september twenty first two thousand and six just about ten years ago she later filed a second application she has had to l j hearings one favorable determination by the state agency disability determination services and one decision to remain on the case by the appeals council this was done on  not i'm not as acquainted with dilts i'd have to look that up your honor it's it's in it's in the brief but dr bernauer found that she could not meet the requirements of employment because of her inability to  on this new evidence came in and it was favorable to her on appeal so they sent it back you know the disability determination services had the two new reports and bait and favorably treated her and her application then the appeals council combined the first application and took the second application as well for their determination they decided to remain on the case and interesting lea they used a sequential evaluation process to five step sequential evaluation process and stop after step three they couldn't find disability of step three and it was at that point your honor that they remained in the case to another a l j for another administrative hearing that was legal error there is there is no stopping at step three unless disability is found you have to go to step four and then step father three in argument one and the related argument two of the defective hypothetical we argued that the finding on residual functional capacity  that's you know that's determinative a legal error cannot be classified as harmless and and and treated as if it didn't exist is the relief if you when the relief you  authority saying that if you're going to reject the treating physicians medical opinion you have to explain it are we out there alone i do know there's a there's a seventh circuit case going back to one thousand nine hundred eighty six dieter's versus secretary of department of health education and welfare believe it is just speaking off the top of my head which which have similar what if what if what if the remark is simply i've considered it and rejected it you just use it just has to be some glancing proof that you've assessed it or i see get into sort of gray area as to how deep the consideration has to there has to be something so he reference to the case at all there is not in there so you know no other of the contrary authority no other courts of appeal have got according  to my research so it's not a case where there's one one physician says that the patient can stand in and another says they can't and s this was the treating physician your honor and that's the difference that's what makes this error even more aggravated not only is it ignored completely unheard six opinion but he relied and as i referenced in my my brief says that the treating physicians opinion must be given precedence it doesn't say that they can't factor in the cause of tate a physician but it it has to be given weight more weight i'd like for a good cause and that could be just a sufficient detail from dr barnes orse you know a substantial number of physicians in other words you're not objecting to the good cause standard that would allow you just there's just nothing in this record but says that it must be mentioned and it must there must be some analysis we don't have we have not i we don't have to decide whether they gave it enough weight or this or that you could because it's not mentioned at all it needs t closest we get to it is argued by opposing counsel in his brief as he said he looked at everything that's not sufficient under ramirez or that i think there's another case as well besides  proceedings it is the decision of the appeals council and the reason it offers for reopening which control our view in that case they stopped it at step one same problem they didn't complete  physician he is a one time examining physician and there is absolutely no evidence in the record from dr bernauer other than a single page of evidence from the august twenty third he did see the patient i'm sorry you're in good see the patient when he was brought in by the a l j to review the evidence of record and discuss plaintiff's impairments so you have one doctor examine the patient another one who is hired by the other side and never sees the patient is that why should we just remand on that basis alone well our point is that the l j honestly had no reason to think that she was alleging any physical basis for her disability because she was initially injured in a motor vehicle accident early two thousand and six and was treated fixation of a plate i believe that the basis of the basis for the denial was well that there was a basis for reopening and that was a conflict over the shipment standard for mental retardation involved and then at the twenty eleven and been a straight of hearing she did not allege any physical basis for disability well what's the lawyers name i mean the doctor's name ern von you know you just you characterize it as simplistic but his statement is that the examination shows across injury to the kelsey ennius x rays show the bowler's angle subtile or joint it sounds like a medical opinion or your argument isn't now that's not a medical opinion argument that is that he wasn't a treating physician argument is that this is if it is a medical opinion is the very edge of acceptability for monocle and what should i guess what what would really help me from you would be citation to law because opposing counsel relied on published decision from our court loza newton goodly grammar is all for the same simple proposition and if i'm not mistaken your brief just never touched them didn't even cite any of those cases so start at the a ground one do you dispute that we are controlled by the legal proposition that if an is going to reject a treating physicians opinion that has to be explanation you disagree with that as controlling well i disagree that it's controlling in this case because dr bono is not a treating things that's your position at this point what's your best case that someone who is an orthopedist and who gives a diagnosis as this one what's your best case i would need wall not just your opinion what's your case that that person is not a treating physician that there is absolutely no evidence in the record that he had an ongoing treatment relational what's your best case for this one time examiner theory defeating someone's well that's your one of those the regulatory definition of what a treating sources what's your case that says that a doctor or an orthopedist that examines someone and gives a diagnosis like this one because they only looked at the person gave that description once is still not a treating physician what's your authority for that you're under the regulations ok so there is no case that stands for that distinction and there's no specific regulation that you're citing as to absolutely i'm citing a argument in the briefing or in any other time that not not a trader i don't see that as they are made argument it seems like it's an argument that's being made your honor honestly the first time i ever heard  as a treating physician is today about fifteen minutes ago in the briefing that's the whole basis of the brief your honor that is a misstatement by paul but paul it's council i'm sorry but you didn't  but it in your brief your honor that status is what it is it doesn't need to be rebutted all right well least you what you've done in this oral argument is reduced your argument you do you agree with the proposition of law and you would you therefore also agree that the cases you guys i'm sorry if the court finds a doctor berners the treating physician and that is a treating specialty physician then absolutely newton would control but newton does not control because dr bernauer and i would point out to the injuries yes but he performed slowly no clinical an examination of her lower extremities he gave grip strength for example but he didn't assess her gait he didn't find any stretch he didn't make any streng findings result regarding her lower extremities and i would also point out that the l j was not restricted to this one physical opinion honestly the l j didn't respect him self to this one opinion because as our point was he had no reason to consider plaintiff to be disabled due to physical means because that's not what she was alleging at the august twentieth eleven hearing at what point does plaintiff abandon her claim of the claimant can be questioned by the administrative law judge but i believe in this case case the majority the question was by players on representative sum of it and if you yes if you take a look at the hearing and sight of the pages six forty seven and six forty eight in the record she testified about what she believed rendered her disabled and that testimony was all about her mental limitations and when the administrative law judge specifically asked her do you have anything else to testify about she said no and on that basis i'm not sure that l j was honestly on notice that he need to do to discuss this report in depth were guarding if i can move on to the another procedural error players counsel's talking about how the appeals council should have performed a full disability and of evaluation now let me run through very very briefly the procedural history on this she applied for disability in september o hearing in two thousand and eight and she was denied disability and she filed a second round of applications in two thousand and nine and was found disabled due to mental retardation and the ale and the pills counsel being in possession of conflicting evidence as to whether she was mentally retarded or not accepted review injured june tenth vacated the earlier denial of benefits consolidated the claims and set it back down to an l j for a new hearing and to the extent that the apple he is claiming that the pills counsel committed reversible error in so doing there's no basis for that because that was not the appeals council's function at the time they were not making a determination disability status they were not accepting jurisdiction over plaintiff's claim they were making a determination that the claim should be reopened and really heard in the appeals council was not making a final also point out that even if we are going to regard dr byrne hours of treating physician for sake of argument and i know we've discussed whether he has that status or not that the question remains as to whether this error minor is not a medical opinion under the regulations i think it fails to meet several of the criteria but that is a judgment call i must talk a moment about fifteen twenty seven a two state medical how she walks whether she needs an assisted device to walk for example what kind of strength there was in her lower extremities he should have examined use i don't follow you so they should have examined clinical findings my question was what clinical findings are you talking about and you don't give me that what you your response as well he should've watched your walk now that done found like i had when you tell me that we should look at clinical findings that serves to me that there are some clinical findings and that he brought before him to examine and that's what i'm hearing you answer or your own or viewer are watching someone awkward not but it be a significant thing but a physician observed making observations someone's gait is indeed a clinical finding and it is indeed helpful to nail j and the that means there is internal fixation with installation of plate on that the bowlers angle is flattened and sub taylor joint is very or thread it and those are some observations and there are some clinical findings there however there are not the clinical funnies that we would expect of a thorough medical examination but it's not what was said by the person making the decision in fact the person making a decision just didn't say anything about this this and so those would all be things that could be gone into on re man couldn't they or perhaps they didn't but but the rules are case law says that they have to consider the treaters information and there's no evidence that any of this well it wasn't thorough enough and we're going to disregard it none of none of that happened to our knowledge would say that there was indeed some consideration because  that the l j should have included a mention of dr byrne ours exhibit i believe you should have i think that might have kept us out of this courtroom right now but to the extent that's an error i still maintain that it's a harmless error at best if you want to basically say to us honestly not sure that that is certainly not on the record and it certainly is not what was actually we don't know whether or not your honor i would say that that as far as it goes as some sort of pro forma requirement to make a recitation wouldn't change the substance an explanation they require a decision setting forth the reasons for the decision and one of those and the l b j discussed for example the full evidence of record which included by the way work activity is a waffle house waitress in two thousand and eight which she testified she did part time over the course of that year and earned about thirty eight hundred dollars doing so which i would submit is active and activity level that is necessarily to find here are harmless well all or was a case that stood for it basically for the proposition that upon a finding of error the proper course of action would be to for the court to make a determination as to whether it was harmless or not and i would say that  and decide whether the l j is a mission i would see my time is up have and thank you your honor and including the entire evidence and record and make a determination on the whole as to whether on balance this decision has a point or the record stands now your honor i didn't look into it in great detail but my understanding is that she elected to continue receiving benefits during the pendency of this appeal she elected to continue to receive benefits while this appeal was ongoing you know if you're correct what benefits the benefits will end and she will likely be assessed an overpayment your honor to be one assessed an overpayment for the time period for which she was not to be eligible for benefits to money back were not what we would ask for the money back and she doesn't pay it and this is of course way outside the record your honor but the normal procedure in that is to ask that it gets back to them and if it doesn't come back then they will simply wait until she's eligible for something else and then do some form of offset you  because you can't work and that is true and there are waiver procedures as well in case you're worried about her well being she she is she is free to ask that we find that she was without she was without fault in well first i want to apologize to the court for misspeaking in referring to a treating physician rather than an examining physician i don't i don't think it makes any difference in fact it back and go to my  receives generally the a o j gives more weight to the opinion of a source who has examined the claimant into the opinion of a source who is not examined point that's the important distinction here not whether there was a continuing history of treatment but whether there was an examining physician's opinion that wasn't referred to and wasn't relied upon in the hearing opposing counsel said fifteen twenty seven is the specific reg what do you know what the regs well enough to limiting physical impairment fractured by callousness but provided and informed medical judgment regarding appellant needless limitations or restrictions it is my opinion that you cannot work any job that speculating as opposing counsel did about the fact that if dr byrne i was opinion had been examined it would have not led to a finding of combined mental and physical impairments that qualify under twelve o five c three as disabling i think that that's speculation and it's something that can be cured by this court remanding the case for another hearing i refer you again to coal x rail coal from this circuit in which the fifth circuit examined the the process that the appeals council used and opinion speculation about the earnings is a complicated question about whether the fact that someone earned a few thousand dollars especially with the psychological background of mr nayland whether that equates to significant gainful activity is a complicated question and to jump to jump to the conclusion that because they are earn some money that equates to said significant ga