so next year is for argument foresight versus hold on he afforded for all weight to the opinions of two treating source statements in dealing with this case we're talking about a snapshot of the claimant's condition during th period the alleged onset of disability to the date of the decision whether mr forsyth would have improved or continued to improve following what was his third surgery right before his decision or not is not before the court and is subject to review by standards of social security law i'm sure what's going to force the and i'm getting to the point here is that the judge repeatedly indicated that he seemed to be on track to be in proving that issue cannot be considered because there's no evidence in this i'm going to continue to allege that it was clearly laid out that he was improving it may very well be that his condition would have improved or likely to have improved but that's not really the issue it's whether he met the standards and whether the treating physicians opinion should have been adopted as of the date of the l g s decision in this particular case we have a situation where mr forsyth was  injured when a when struck by that snapped from a tractor suffered a broken left ankle he had first surgery in that summer the entry happened on may sixth of two thousand and eleven and he had surgery soon thereafter a second surgery was done when he continued to have problems and pain with vehicle despite the fact that dr  treating physician indicated that he would not be able to sustain competitive employment that is until it was at the time that was what around april may two thousand and twelve correct before the third surgery  argument yeah it's a doctor that was not relevant to this case it was an error we can stipulate to that ok it's really the ankle that becomes the lingering around you you know there were issues that pertain to his back into a shoulder to be perfectly honest based on my experience it would have been very difficult for him to succeed based on those conditions along but once the ankle injury occurred that it was all injury by itself could really very well have satisfied step three but that was not  as to the fact that he had a weight bearing joint and was unable amulet at least during that period of time and in this particular case what we're talking about though is we have two treating sore statements and i've asked the court and i've cited to the fact that while it after completion of the first brief in this case an article appeared in the bar journal for the seventh circuit indicating the history of the treating physician and part of the argument i've made in this particular case is the difficulty in applying the treating physician rule and how it applies in general this is a case where the doctor or the algaes significant finding is that he can give the discount the weight of dr eckermann the podiatrist and dr low good because the claimant had an improvement in medical condition in fact his condition improved so much by case maybe i'm being cynical it appears sometimes as a failed g s when dealing with treating physicians of find out what the r f c rule is or what they determine it to be and then give weight to the doctor if it agrees with their interpretation  in this particular case both doctors indicated that he could not sustain work that he was having too much pain and problems standing and that he was going to continue to have those problems thousand and twelve to february of two thousand and thirteen his experience in volved walking in weight lifting what was going on well i don't know exactly all's i can tell you is that he reported repeatedly in the that period of time were walking and exercise would have been part of the regiment that he would have been asked to undertake weight lifting is not something we usually see in disability records it is to the extent of how you're cool about weight lifting because weight lifting can be using of an office equipment and other such thing that isn't done in the seated position somebody like mr forsyth who's worked on a farm his entire life is going to in order to go back into the workforce eventually which is ultimately the goal of social security is to hopefully provide compensation while a person recovers or reaches a point where they do or turn are able to return to work he's going to have to maintain a strength so i know they're not necessarily in control if the judge had a question about that and this was raised in and decided previously by this court in some cases such a shocker the judge should have asked about it and didn't did not know he did you just can't assume that the stuff is an applicable or that it is applicable there has to be some sort of question by the part of the l j a to delve into that  specifically if you require counsel in these hearings to address every potential issue of credibility we would have three and four hour here s which i think no one wants the judge has already reviewed the file if the judge has a question of something that says oh this guy may not be credible then i think it behooves the judge to ask the question so that it can be addressed adequately  i'm running out of time are there any questions per se about that this time for your honour's no thank you mark thank you i'll reserve the rest  may please the court lou hahn on behalf of the commissioner of social security mr forsyth alleges one error only that the l j incorrectly evaluated the treating source opinions but mr forsyth has been unable to point question is it traditional problem in this business of giving significance to what people do around the home in the home as if that was predictive of what you could do in a forty gave for discounting that the medical testimony was that he helps around the house now we have pointed out in numerous cases that the fact that you do stuff around the house doesn't mean that you can work a forty hour week and in someone's business or factory that's your honor but dr logan in one of his opinions actually said that mr forsyth cannot do activities daily living now not to cannot perform activities of daily living it was quite restrictive and his statement in that opinion actually suggested he was precluded from doing any activities of any daily the date of that opinion that opinion your honor i believe was from two thousand december two thousand and twelve that was unhealthy where was that in terms of the surgery sequence it was after the first two surgeries in the first part of two thousand and eleven after the ankle fracture before the hardware removal surgery that occurred the month of the administrative hearing february two thousand and thirteen so this is this is about two months before the hearing when whatever shape piece in he has to go back into the hospital for surgery right that's correct i mean we've we've got we've got a lot of changes changes going on it is dishing right correct and although we would like to know that that's those are not notes of the l j discussed in his decision b l t did discuss other evidence from the two treaters at issue doctors ackerman and logan dr ackerman said that he was on his ankle a lot mr forsyth actually had quite a bit of activity that's it from your standpoint it's irrelevant whether you can walk because you're just talking about sedentary jobs or corrective shifts that now have to walk this need legs let me ask you about about that the vocation my experience says he can he can be a production worker a cashier or a what was the third one and information clerk now what's a production work well your honor there are a lot of d o t listed jobs production clerk production worker actually it's not a particular job in the d o t but it's clear from the vocational expert's testimony which was unchallenged at the hearing and challenge found he didn't he didn't break down production workers into different categories he just said production worker that's correct and i would be selectively a person working in a factory but t in wisconsin sounds very low actually but that's what he says he doesn't define production workers he does say where these are people working out of the assembly line are people who are engaged national manufacture right i don't see how most types of production where those are many types of production or are hard tough jobs you know you actually standing and standing on your feet for most of them for many production jobs and i don't see how they i don't see how the vocational expert can be permitted to use categories which include many jobs that this person can't perform well your honor at the vocational expert was responding to a hypothetical question that didn't involve the standing and some of the other thing but what in production of i don't know cat toys because you just said you just said any you put together a little little things with your fingers and it's that's very different from being on we've had cases involving poultry processing where you stand out an assembly line you chop up chickens as they come by you on it that's a tough job dirty and noisy and difficult but with the vocation ice cream makes no difference differentiation among these jobs the vocational expert through his expertise experience in placing people in jobs was taking hypothetical question which included sedentary r f c with the additional limitation of the right overhead reaching and identified those as three representative jobs and the a l j wasn't under genitive of what representative of the types of jobs that someone of that are but only some production jobs are within the capacity of a person like this process and all the production jobs but according to him there are all there are only two thousand printer there are only one thousand production jobs in wisconsin and he can't perform all those so if he can only perform one hundred well that that could make a dramatic difference in that in the outcome of the case the number was one thousand and that was the subset of the jobs it was not a sum not a subset of production jobs those that's the production jobs in wisconsin all thousand jobs production jobs may well include many jobs he can't perform so the only jobs that should be counted are the ones you can perform and your hon but out belaboring this that is that one thousand b how do you know he didn't say that he was giving a job number based on that hypothetical question and that jump jobs number the one thousand for that's this particular job that we're discussing war all of the jobs that someone matching mr forsyth's functional abilities with were able to perform and we would note that where did this get thousand figure from from his experience and led him and his experience he goes around wisconsin counting people vocational as it has you learn the number of jobs in the state but by experience the occasional experts place individuals in jobs and they have experience in these kinds of thousands production jobs was constant your honor personally i am not sure about the source's and the bureau of labor statistics publications and other things that a vocational expert would look at but we'd like to note that the most recent cases that the circuit has issued on the issue of vocational experts didn't express lee go through the procedures of overruling what is still good precedent in bikini versus asked  and donahue vs barnhart in those cases and l j is entitle to rely upon unchallenged vocational expert testimony in this case at the hearing and at all phases in this appeal in this litigation there's been no indication that there's some jobs to each of the subcategories now that obviously is totally improper or right because it assumes the number of jobs that this that the applicant can perform ali assumption obviously false that all the subcategories had done a camembert jobs could i could take you back to the reasons for discounting the doctor's opinions treating doctor's opinions  we've got phrases from the medical records like quote pretty active and unspecified daily activities or that is there anything that gives in the record that gives us a little aberration on guy can't work at least right now how about the quote pretty active what's meant by that though those are the doctors phrases was or any explanation of what was going again only in so far as mr forsyth testified to those after mentioned activities but those notes came as your honour's pointing out at the same time as these restrictive opinions and then finally as late as march two thousand and thirteen the same month as when this decision was issued was when dr ackerman issued some notes following the final surgery saying that mr forsyth was approved for light duty and light activity and in fact this found an even more restrictive right because of the history of the right rotator cuff injury which also that as well as the left femur break and the kneecap hardware implantation all happened many years before the alleged onset date in june two thousand and ten although if we take it today that we are that mr foresight to stipulate at that that's not the correct date it's actually the date when he had the tractor accident in march two thousand and eleven it's even further before that and the state agency reviewing doctors schon chan found that he was limited to sedentary work starting in may two thousand and eleven this a l j in fact actually found sedentary as the limitation for the entire relevant period going in this decision as far back as the the department of labor collects and given s o c code there may be as many as fifty three occupations that range from sedentary to evi and the judge when they're when the v a is testifying to the fact that it's a representative job it's representative of all of the jobs that are in that category of that exertional limitation so if it's a sedentary job if there are fifteen sedentary jobs than that as a representative of the they arrive at those numbers i could probably have you fifteen different vocational testimony or transcripts of the testimony and fifteen different ways that they say the call collected one is whether it was well supported and the diagnostic techniques supported it and then whether it's not inconsistent which the language of the regulation grates on my ears because of a double negative which makes absolutely no sons other words as a consistent in this particular case then only then do you go at established no controlling weight that you have to establish the appropriate weight and that particular case the appropriate way it is determined by x application of the checklist there are no there is no application of the checklists the judge kind of implies a couple of things he talks about daily activities does not equate to full time work he talks about raising his children and basically implies that you can't get disability unless you call social services to remove your children because you're not supposed to take care of them if you have them so i'm out of time if there are no other question question what do you know today what what is his most significant impairment to be perfectly honest judge i can't tell you that i was aware of the fact that his condition may have very well improved and that he may be have gone back to work the last time i was talking to him i know that was what he was working towards the fact that judge i mean that the doctor at heart  released him on life duty indicated there was some improvement the judge could very well have granted what was called a close period if as of the date based on the record i did not have to deny these cases are always subject to twenty or twelve months review even if he would have the judge would have approved mr forsyth that would have been subject to review congress authorized if significant number or increase in funding for such reviews and they're being done on a regular basis so that that's not what the issue is the issue is the time frame of where the ankle injury happened and the date of the decision ok well as of the date of the decision was his worst condition it was his ankle and is the pain associated with that even sedentary work it does require some amount of being able to get up and move around and take care of files in this particular case d indicated that he did not even have the ability to do that for up to an hour over an eight hour time frame because of the pain associated with it the fact he was also using a cane at the time throughout most of this which is not in the r f c at all from the judge  which impacts under s s are ninety six dash kind p whether you can perform said into because basically then you're carrying stuff with one hand because the other hand you're having to utilize a cane when you also add to the fact that he's got a problem with the shoulder then the question becomes was he able to use the cane with the ship right and that he has a problem with and basically then is he further limited to not being able to carry anything there just lots of force in this case lots of holes with the judge's decision and i asked for a verse is he right handed i believe that was what the testimony was ok well thank you very thank you very much