may please the court my name is greg wallace and i represent jeffrey walker in the social security disability appeal mr walker's a forty four year old man who is unable to work due to chronic neck and back pain primarily he has another number of other ailments as well we are here for two reasons number one the l j failed to discuss or even mention a in september two thousand and fourteen he stated that mr walker was unable to been to backward or forward due to severe spine disease he separately restricted walker from working with machinery where is required to be in forward or to lift any weight now there is ample medical evidence supporting dr thousand hers restriction here the m r i is particularly the ma leg raisings and impaired gait due to pain dr thacker says restriction here is well supported by both objective and clinical evidence l j never mention these restrictions nor explain what weight he was giving to dr factors opinion well he does say claimants alleged limitations are inconsistent with the medical evidence i left out of neck and back pain going go regulations on the law of the circuit require that a nail j always give good reasons for the weight given to a treating doctor's opinion and here the l j gave no reasons because he never mentioned this particular restriction of this this restrictions important commissioner agrees to this could be error here but the quicker says well it's harmless error i don't think so and there are two reasons first of all there's no basis inability to been forward or backward the l g did put in his r a c assessment a a restriction on or or a need for alternating sitting and standing and limited he him to mr walker said in jury work there's no basis in the record for predicting whether the l j would have credited this statement had he considered it now i don't know whether he ignored it or whether he  eighty five fifteen defines stooping as been dating from the spine along ok then you come forward to so security ruling ninety six dash nine p which states that the complete inability to stoop significantly erodes the sedentary occupational base so a finding of disabled usually applause now that ruling also talks about the need for getting vocational expert testimony as to the effect of the precise effect of that limitation on the sedentary occupational base and that brings me to the second reason why this is not a harmless error and that is that there is no basis in the record for determining what the ves testimony would have been had she been presented with this particular limitation had the l j put in this in his r f c assessment and the hypothetical question that was based on that assessment he can't be and forward or backward he's unable to stoop and then have the consider that limitation and its effect on sedentary work and essentially the commissioners asking this court to to come in and make the judgment first of all as to whether the doctor would write it a second is whether the ve would have what the ve would have said on this and in that respect this is just simply not harmless error rely mainly on first the opinion of dr marion off who was a neurosurgeon who saw mr walker one time to evaluate whether he needed back surgery or not now there are some inconsistency yes with what dr marion off said and what the objective medical evidence show for example dr marion off said that the m r i of mr walker c five and at c five and c six so they all j never addressed that inconsistency and resolve that before relying on dr marion office opinion additionally there is a notation in the record attached to one of those reports that dr factor or his treating doctor believe that the spinoza's out for c four and five the severest the gnosis was what was causing his neck  and shoulder pain so again there is no addressing since the l j never addressed dr the actor's opinion on this point he never resolve the apparent inconsistency between and he can't resolve it just by saying well you know he knows and dr thacker apparently doesn't what does it mean when dr marion off says significant degenerative disc disease and then later diffuse discomfort what does all that mean well i think you read that he was referring there to the disease in mr walker's lumbar spine rather than the cervical so yes and and so he and this is another point i do want to make about but because his pain complaints he's complaining of diffuse pain which pain all over and it's not a focal point of pain in the end it's unlikely back surgery would help it so that's why and he recommended physical therapy and and pain management now the commissioner wants to make much of this as describing as conservative treatment and and really what this is when the commissioner talks about conservative is non surgical treatment now the commissioner can't point to any law or any regulation which says that people have to have surgery in order to become does in order to be found disabled so people can be treated for severe disabling back pain and not require surgery and in this particular case dr murray off recognizes that mr walker is suffering suffering pain oh so much so that he recommends that he goes to the pain management what about the fact that he twice says neck asco range of motion without tenderness it's there twice the same weren't exactly and that was a single instance there are multiple instances in which dr afact who regularly examined mr walker found limited range of motion in his in his in his spotless spine his neck his upper his cervical spine and everything so that's another inconsistency that the l j never addressed there but he just simply relied on dr mary office opinion as supporting you know his his decision here now the o j also rel had to do only with mr walker's hypertension and diabetes medication there was never ever any reference in dr tharp was notes mr walker was not compliant with his pain medication so if you're not taking your diabetes medications that mean that you don't have back pain well i don't think so but nevertheless the record shows that mr walker's compliance was good from late two thousand and fourteen into two thousand and fifteen and into two thousand and sixteen so this is not him long history of medication noncompliance in this case and we would submit that simply being noncompliant with  hypertension or diabetes medications doesn't go to the two doesn't form a basis for the l j to discredit the pain you can tell me because the a l j refers to several different citations in the record i don't know what they mean to tell you the truth but when he talks about noncompliance with medications are you telling us all those who deal with hypertension diabetes and discount other medication if there is never a and in fact in some of those and none of those do with p compliant with his main pain medication so there's no there's no place in there where he says he's not comply oh place it all right no professor no place at at all not that i've found or can remember in that regard so with with the thin evidence on the one hand and this non harmless error of not addressing not even mentioning this very important if you look at about halfway down the page he refers to in september twenty four team claim that reported to dr sacker and he references a live exhibit eleven f page two that's the treatment in question and if you if you look at the actual treatment record it's important to look at there's there's actually two parts that you need to look at one is the first part where he said patient is unable to bend forward or backward considering his severe spine pain but the concluding portion of that treatment on the next page on page five sixty four the takeaway portion where it says plain of care notes if you if you look carefully in our pally worded but what he says is patient is restricted to work with machinery where he would be required to bend forward or lift any weight and in this case the jobs at the found plaintiff can perform our century work the surveillance system monitor and telephone operator or telephone order clerk those jobs are not require working with machinery or bending so you think that so you think that where the  specifically makes reference of the report by the doctor of next welling and pressure with pain in cervical thoracic and lumbar spine that carries with it one page he considered his later treatment notes where he in fact directed plaintiffs to engage in cardiovascular exercise that was in the very month after this one and october twenty fourth thing this court has noted that simply by not citing to a piece of evidence doesn't mean that they didn't consider it and when this case it's clear he considered it because he mentions dr thacker by name he mentions the very exhibit number simply because he didn't mention a sentence out of a motion without tenderness and full motor strength he leaves the word neck out every time he says and he says his two or three times a year in office in the same words it's his full range of motion in the net that is that what this talk about then say neck and the previous sentence says neck and back pain right a normal contextual reading of that is it refers to both counts of trust me ok so that's misleading in that sense third sentence misleading well they're talking about neck pain versus pain it's it's not it's two different areas it's two different medical reports we agree it's ambiguous the claimant has a full range of motion without tenderness and for motor strain the previous senses neck and decision where do we find his re the l j s reasoning for not including the limitation on been doing forward and and lifting why in his determination of the residual functional capacity and his formulation of his happy they had a question where do we find a discussion by the l a j that explains why he rejected it and did not include those limitations that we find in the medical records yes your honor what the l g a did was he looked at the evidence as a whole he looked at all of dr that mistreatment nodes and if you look at them it's clear the doctor thacker did not intend to find that plaintiff would have these limitations he repeatedly advised plaintiffs to exercise regularly thirty minutes a day five days a week the following month after this treatment record he advised plaintiff to engage in cardiovascular exercise and in march of tw fifteen the following year he is plaintive to be as active as possible with walking and when you look at the records as a whole it's clear that he found plaintiffs could could engage in activity and they not only looked at thackeray's notes but he looked at dr marianna of who by the way dr thacker referred plaintiff to and dr mariano looked at the three m r i scans and concluded that he also recommended conservative treatment  he found plaintiff had a full range of motion in his cervical spine and a full motor strength in the upper lower extremities and after reviewing the m r i scans all three of them he found he recommended physical therapy and medication management so we have work with hostile limits so i think it's clear when you read the evidence as a whole and you read the decision he wasn't isolating one sentence as plaintiff wants you to do he was looking at the record as a whole which is what is supposed to do when assessing the  he considered dr thackeray's treatment he didn't mention this one sentence which is an artfully worded by the way and if you read it literally it says the plaintiff is patient is restricted to work with machinery where he would be required to bend that wouldn't eliminate any of the sedentary jobs that the algae found and it's actually consistent with the algae as r f c which doesn't require working with machinery neither dr shines here on grammar and yes he said for the lumbar spine he did find some severe general just disease however he still recommended physical therapy and he and pain management and if you look at the record as a whole we have is treating physician thing that the question in this case did not mention anything about working with machinery and bending forward or anything like that i know your honor we did mention it in our brief and at the end our position is that the l j considered dr thacker even if in addition to not being compliant with medication plaintiff also is not compliant with his doctor's treatment recommendations noted that plaintiff did not pursue physical therapy even though dr marianna the specialist recommended it and many times in the record he was repeatedly advised to exercise regularly cardiovascular exercise and if you look at the september twenty four thousand treatment know it in his later treatment notes it shows plenty of gained weight so he did not follow the treatment recommendations it's more than just the if there are no other questions we ask that you form the edges decision as it is supported with substantial evidence and thank you j doesn't need to isolate one sentence in his discussion well if that senate contains a specific limitation that might take the out of sedentary work we think he needs to discuss it and even if we concede that the commissioner is correct that he looked at this and considered it i think judge shepherd made the point and we would simply reinforce it if he did consider it where in his that written decision is discussion of the weight that he gave it and the reasons that he gave that weight was the bending restriction in the anywhere in the in the treating physicians notes or whatever other than in the sentence read by counsel which has it seems pretty clearly linked to the machinery restriction well me address that there are two places there is one place where he generally says he says generally he cannot be and for backward is that in the same five sixty three five sixty four pages yes those two pages on five sixty three he says he cannot be on forward or backward and it's true and on the next page he says that he is is limited to not working with machinery where he requires that now i think this is a particular application dr thacker had no cause to address whether mr walker could b to sedentary work when that was not the kind of work that mr walker had done and it's our contention that this is just a single application of this general restriction on the inability of been to the type of work that mr walker did the fact that the records also recommend or order exercise i see my time as a man i have a may answer that question thank you earlier this court has held that a doctor's prescription for exercise does not demonstrate that a claimant can perform work eight hours a day five days a week to brosnan a hand case which i believe we cite in our brief  on that issue thirty minutes a day of exercise does not demonstrate that he is is not disabled and and yes it's always i've had back problems doctors always wanted exercise you know and in that regard to keep the keep some movement and but but the simple fact that he might be able to perform exercise for thirty minutes a day does not show that he can perform work for eight hours a day five days and what about the fact what the government counsel said was well he must not have exercised because he still gained weight well i'm not sure that there's a basis for that inference you know you can gain you can exercise and still gain weight so i