it please the court my name is a ton castle ya niche i am representing michelle herder in this appeal this case goes way back so i heard her applied for s s i disability benefits back in june of two thousand and six so it's been more than eleven years her claim was first denied by a l j in october of two thousand and eight it was the case was appealed to that to this core and this court of firm the district court so that it was sent back for the new hearing to new hearings were scheduled well it's a little confusing the record there were three but the first one the ail day on his own cancelled it because the case was still pending at the ninth circuit so then there were two additional hearings that he scheduled these hearings were scheduled in seattle now heard or lives in pierce county the correct hearing office is into coma they'd open to hearing office in tacoma but by mistake social security never transferred her case there so the hearing was in seattle and her attorney her hearing turned it was not me appeared at the the record because it's not clear it was because she didn't have her try to ride on through so she didn't have transportation to go the further distance to get there the attorney asked for another hearing and they all she said no now social security actually has a procedure where they can allow people to appear by telephone necessary but a chose not to allow that and chose not to allow a new hearing so there's a lot of procedural messiness here but let me focus on what the what i think the biggest error is requiring re man the l j knew that his basically his previous decision had been affirmed right up through step five it was reversed that step by because he hadn't taken vocational expert testimony which was clearly required so in his new decision it's ok for him to adopt his prior residual functional capacity assessment for the time period through his last decision because that had been affirmed the problem is he also adopted that exact same residual functional capacity assessment for the four years that had elapsed between his last decision and that and the new decision and there was new evidence it was about three hundred seventy pages of new evidence that had been submitted and included in that evidence was evidence from a physician assistant ms new meets who opine that her was severely limited not even able to do sedentary work and she based this in part on the fact that this woman's got a lot of things wrong with her but also one of the particular finding she noted was that she had very severely reduced range of motion in one of her shoulders so there's that new evidence there was a psychological evaluation oh there was a previously there been a treating physician who had opine that basically she had a lot of problems wrong with her but her psychological condition was a real mess and that had been rejected by the gail j because she was at a psychiatrist and supposedly she was biased because she was h well that was affirmed by the district court in affirmed by this court because once again there was no psychological or psychiatric evaluation well in the new record there is a psychological evaluation by d saw her a few times and filled out a form in which you valuated her and said he was limited he thought she was limited to sedentary work now that significant here because she threw out the timeframe from the that we're looking at here and as far as our case is concerned i'm not challenging the l g s finding for the time period through his previous decision because that had been affirmed but for the time period beginning in two thousand and eight if she was limited to sedentary work she's disabled under social security's rules under the medical vocational guidelines she is disabled but the l g rejected ms nimitz's opinion that she was severely limited rejected is opinion that she was limited to sedentary were projected dr when gates opinion that she had many marked functional limitations mental function limitations and in fact said that she had no mental severe mental impairment whatsoever that was an if it's a disease that affected her balance and its remit and problem and this was something she was having throughout this time opinion without having even seen her but he had seen her in two thousand and nine and then he actually saw her in two thousand and twelve examined her and then several months later completed  opinion now his opinion isn't so much of a disabling opinion as it's an opinion that yes she has been years disease yes this can cause exacerbations that can affect her balance so that by itself i'm not so sure that that  well actually depending on how often they occur that could limit you to said terry work where you wouldn't want to be working on your feet if you're going to lose your balance but it doesn't stand alone we've got the other evidence as well all of which was rejected by the  and he's not he was a treating physician at that time because her previous treating physician had retired and he said that well the only he estimated that it was only he wanted her to be reevaluated in three weeks he didn't really give a long  h like he didn't say i think she's limited to sedentary and this is permanent or this is for twelve months he didn't he was nonspecific about the length of time so once again dr nccam is by itself might not support  unquestionably support disability but it's consistent with ms nimitz's opinion it's consistent with the earlier evidence from that are which was rejected by the l g as well that was affirmed by into court so honestly i don't think that even affects the analysis here because even if he even if we were to assume he's only an examining physician his opinion is still entitle to wait and it's consistent with all of the other evidence from every treating examining position that she has a a plethora of problems including there's there's evidence in the record in the new record of an x ray on her put it confirm that she has a congenital deformity on her on her foot she has these short toes that affects her balance as well affects her ability to walk ms de meets talked about her having a very slow gait so it wasn't just her shoulder and once again it's even if we assume that that the a l j didn't have to accept ms in the meat's is opinion that she was severely limited in her per findings would support a limitation to sedentary and one of the problems with the district court agreed in this case in this on its review that it's obvious it was actually from january two thousand and nine there's a treatment note from the same date that confirms that the form was sent to her in october of two thousand and eight but the l j didn't look that carefully there wasn't new testimony but he still needed to evaluate her testimony in light of all of the new evidence which he did not do he just repeated there's no change in his residual functional capacity from the his prior decision to the current decision one of the odd things from this case is there's a finding that he rejected her testimony in part because she told someone what are your goals right now and her goals were horseback riding and obtaining disability when she was younger she used to ride a horse she hasn't ridden one in decades but that was one of her goals in her life she hoped she could someday be get on a horse again her desire to obtain disability is a natural desire if you are broke and you can't work she hasn't worked it's put up  she had worked in sixteen years she's had all these problems that affected her ability to work for many years yes somebody in that situation is going to see disability that's not a reason to reject her testimony i don't have anything else i would like to was dr a part of a clinic with you part of a group clinic yes he was part of a group clinic and that's why he was he was seen or as part of that group credit he wasn't which which of the which other doctors were part of that same clinic there's i would have to sit down and look it up to tell you that i'm not sure she saw anyone else in that clinic but i think there is one other doctor she saw but i i would have to look that up real quickly what was his what was his role i would like to reserve a balance of my time with a fine thank you you may it please the court my name is joseph lang camera i represent the commissioner in this case misheard or claimed that she can work for a variety of reasons for example she said she said that she can work because she had problems breathing but in march two thousand seven pulmonary function tests were normal and she had various examinations throughout two thousand and eleven and two thousand and twelve that showed that her lungs were clear she also alleges she had pain in her knee her back in her shoulder yet in december two thousand and ten for example after the date she claimed that she became disabled she said she actually didn't use pain meds and she preferred to just deal with it and she repeatedly felt well if she reported to her various providers and finally despite claiming that she experienced dizziness in ringing  ears conditions that she attributed to many years disease exams repeatedly showed that her that she essentially unremarkable examinations and one provider actually questioned whether or not she even had his opinion doctors no question but that he diagnosed her with manures disease correct despite there's no question that she has that diagnosis i think i think the point is though that with respect to the severity of her symptoms from that  gale jay provided valid reasons why those symptoms were not disabling specifically with respect to dr plaza because he said that she had frequent many years attacks and he actually called her symptoms debilitating if we medical records contradict that if we look at page if we look at pages within the medical records specifically page nine zero three i would point your honor to that's in february two thousand and twelve that's that's the same month that dr issued one of his opinions and what that medical note says is that her subjective business complaints were quote unquote unconfirmed by physical findings she could perform all of her partial movements at that point if we look at notes from april twelfth two thousand and nine for example going back in time page eight seventy five only reduced the stimulator response that one of the things that she complained about was was hearing problems and balance problems in may of that year she reported having few if any severe vertical in your arm turn to that page but i can treating so so the ear nose and throat these these records are treating in here in fact if we look at and then over an eight seventy five dr plaice is on that page so he's associated with that practice as well  impression is that she has dizziness and with and that there is a history of many years disease in the record and i don't think there's any dispute here about that i think to your honor's point that impression states that she does have the disease however reject the notion that she had mirrors disease or that she even experienced business from time to time what we have here is a nail j limiting her to a range of light work with various posture a limitations and environmental limitations if you look at the actual r c so the ail jay is insane this person doesn't experience dizziness this person doesn't have any restrictions working what the is doing is looking at the laundry to no record this treatment noted earlier on a points out  correctly one of those treatment records and what that record showed as the o j reasonably found was that her symptoms were not as debilitating as she claimed dizziness being one symptom that she focused on focused on doctor and came a limited her to sedentary work which is the lowest form of work under under social security regulations but there are two reasons that the o j provided for discounting that opinion number one it was inconsistent with that doctor's own findings regardless of whether or not doctor and kimo was an examining physician or whether or not he was he treated he actually saw her more than one time provided valid reasons for discounting it and with respect to the doctor's other findings that were inconsistent with the notion that she was limited dysentery work for example on page eight ninety nine dr and can actually rated her balance as quote unquote mildly deficient again this gets to your honor's point about the launch to no record and how severe her business was this is a doctor who saying that she has a mildly deficient balance in addition he found that her back problems and her vertigo were moderate that does not consistent with what the medical findings are that's that's that's a nail that's part of the role here in assessing the entire record and here when we have findings from a doctor that about that a claim balance is only mildly deficient it's reasonable for the l j to look at that fine and say that doesn't line up with an opinion that this person can or can't can't lift more than ten pounds or needs to sit for the vast majority of the day and with respect to your honor pointed out that she that the exam was less definitive than i would expect for many years diseases that further underscores the decision and in this case to give less weight to that opinion because even dr and common noted that that the exam was was not all that definitive and he recommended that she be reevaluated in three weeks so we don't have an opinion here that's offering any strong support for her claim that she was disabled given her balance issues you know he had noted that she'd get her manures started about three years ago from the date that he wrote this record i think i was dr judge fisher over balance is variable but unreliable preceding that is the whole he checks a number of a number of boxes checked any of the following areas and has restricted mobility agility or flexibility checks balancing bending judge fisher pointed out balance is variable but unreliable and mildly deficient and the key there is and then he concludes using the definition what is the client's overall work levels  e and the key there your honor is that there is there are really two points that relied on here the key is the mildly deficient finding there as well as when we look at what the severity rating is he didn't he didn't rate the severity of her balance problems as as marked or severe which would be more in line with his opinion that she could perform sedentary work he marked three which was moderate and then when he talked about her her balance being variable he added you know despite the fact that it was unreliable it was also just mildly deficient so the ale jay looked that all of these findings and drew the reasonable determination that there were some inconsistency is here that warranted that warrant giving this opinion less weight prior to terminations that the medical records that were before the court supported an r f c for range of light work and that the medical evidence that was submitted on remain and didn't justify a basis for changing that and that's that's  guidelines that that's what would occur however however would some what's important to know is that is that there are various instances here that this is not a case where that would be right for a credit is true in other words discrediting this opinion and then sending it back for a finding of disability because there are very there it not will stand i mean at one point i mean the there are various medical opinions in this case that including cases from the prior record that this court affirmed that demonstrate that mr herder is not as limited as dr and coma suggests and there are medical findings throughout the record again various normal fines that we cite in our brief that demonstrate that that there really is a conflict here  so this would not be an instance that so she's only been if it's back to two thousand and eight is that correct because of the prior proceedings my and i my understanding is that's what that's the point that that  what herders herders representing is that that is that that prior decision is essentially affirmed and therefore is is law the case so so the relevant inquiry would be for two thousand and eight onward  the prior application in was actually submitted in two thousand and six so given the addition of new medical evidence and whatnot to what extent can you look at the prior records the court is entitle because store purposes absolutely but i mean the court is entitle to look at this entire record and i think the point is though that this court has already looked at that record and has already said that the findings with respect to this court's prior determination and then just applied to step five issue that was that was at issue on remand and then looked at the additional records to see if there was any need to change the r rebuttal let me start by addressing judge has this question your comment about the other doctors you saw dr murray york of there once is the only other medical doctor that he appears she appears to have seen at that clinic but it was a clinic and there were there were nurses a traitor there about four or five treatment notes from that place so he was the treating physician that's that's on question on question unquestionable now with regard to dr and commision opinion and the idea that it's such an extreme opinion this is a woman one of the things he noted in his evaluation is that she has to work to some deformities that's who she is she was born with these odd deformities which affect her at her age there when he was seeing her she was i think over right around fifty five but dr and committed say anything real radical here he didn't say she can't do anything he said she'd have to be limited to sedentary work stay off her feet because exacerbations the there's no opinion of it in the record from september of two thousand and eight on anyone actually saying she could do light work and in fact prior to that pretty much all the evidence also says she can't you light work but that got rejected by the l j the first time around just in a will j have to make a new decision a new r his r f c here is residual functional capacity assessment didn't change one whit didn't change at all and you only way to justify that is by rejecting the psychological evaluation by dr wingate the evidence f and the evaluation dr plaskett if you reject all of the evidence from every treating and examining position guess what there is nothing left but essentially from the time period of two thousand and eight on that evidence isn't contradicted his reasons for rejecting all that have been subpoenaed to be convincing not just well i don't like it or he wasn't specific enough for my taste or plaskett one of the reasons for him was it was his evaluation was done as part of a disability claim matts not a valid reason so um i would ask that for the time period that this court i don't have any problem and i think it's reasonable for this court to affirm his decision i don't think we can ever grounds to challenge it through the gate of the previous his previous decision but since then she turned fifty and all of the evidence shows she's willing to sedentary work so it does support a finding of the oh my god i think he believe this is going on forever so really from age fifty the evidence shows she was limited to sedentary work and she does great out