good morning ladies and gentlemen our first case for this morning is gallant against the commissioner of social security acting commissioner c morning thomas brodeur on behalf of the appellant henryetta down may please the court this case involves an agency finding that this court commonly reviews the r f c determination as well as another finding it reviews less commonly whether a person with that r f c determination can perform the claimant's past work and stuff for this court generally requires the agency's adjudicators to confront evidence favoring disability explain why it's rejected and build a logical bridge that enables meaningful review and in this case the agency's adjudicator simply didn't live up to that standard most notably the adjudicator failed to offer a careful appraisal of the vocational evidence in the record and assess each of the claimants just passed jobs and explained how a person limited to frequent use of her hands can perform each of those jobs he also ignored significant medical evidence supporting the claims milling geishas of difficulty using her upper extremities on a repetitive basis corroborating her reports a profoundly limited daily activities due to those difficulties and contradicting his assessment that the objective medical evidence shows generally normal functioning of her hands and arms while he was resolving conflicting evidence right in the end seemed to me that medical reports were not confirming that there was as much limited range of motion is she was testifying to the ale jay was evaluating what is certainly in some respects mixed evidence he states at one point when he's regarding her reports of limited daily activities due all of the claimants clinical examinations from two thousand and thirteen which showed significant deficits with her left upper extremity now to be clear there are two issues going on with the claim that she has a history of remote trauma to the right hand that resulted in pins and needles being put in her right hand she also suffers friends a very old injury it's a very old injury but i think the evidence shows that it continues to impact her throughout the period and that's relevant in the ail j concluded as much by limiting her right arm to frequent she's also dealing with an issue involving her cervical spine and an impingement over nerve root that's causing cervical ridiculous pathy her symptoms related to this impairment began in april and may of two thousand and twelve  during two thousand and twelve her examined it in your illogical examinations with regard to that upper extremity are largely normal she has tenderness and pain related to limitation but the neurological in the patients are normal but by two thousand and thirteen h functioning in that extremity is far from normal most significantly in june of two thousand and thirteen an examiner documented weakness throughout the left arm diminished grip strength and muscle atrophy in the left upper extremity in the ail jay did not discuss this now to be sure this contradicts his assessment of the evidence as showing normal functioning of the hands and arms but even if we give the adjudicator the benefit of the doubt and assume that he simply conclude the objective evidence was a strong as claimants out the claimants allegations indicated that limitations were this court cannot meaningfully review that finding because it's not clear the ale jay considered the evidence of muscle atrophy in her left upper extremity do we know how bad that a much the the examiner didn't document how severe it was he did document limited strength through it with motion in the left upper extremity and diminished grip strength findings which for replicated when the claimant who lacked insurance eventually did get in to see a neurologist and her left upper extremity the ail day also did not discuss diagnostic testing from late two thousand and thirteen showing that she has cervical ridiculous theory which is a path all it's you that correlates with her reported symptoms and limitations in our left upper extremity so if we give the jew judge the benefit of the doubt in terms of what he wrote that finding is still not reviewable because he did not confront the evidence that does not support that conclusion and explain why it was rejected so that this court can be sure he considered it but he does conclude that she can meet him and even if we thought that there was a problem and you have stressed this difference between two thirds of the day and past work is his troubling in many respects dalin seems to have two or maybe three jobs that qualify as past work under the regulations it's unclear because the record doesn't resolve the issue the judge didn't make an effort to resolve the issue and the judge did not conduct any meaningful analysis that allows this court to determine whether there are two or three jobs what each of those jobs required and so on and so forth she between one thousand nine hundred one and two thousand and one she was working as a claims clerk for temporary agency she was hired permanently by an insurance company in two thousand and one from two to two thousand and twelve during her hearing she focused most exclusively on her duties in the mail and distribution department but she also indicated that she was sorting claims at a computer desk and had to get up and go to a copy machine to make copies of documents that were attached to those claims in a report to the agency she informed them that in this job she was sorting mail approximately one day a week and the rest of the time she was audited claims this suggests that during that time working for anthem she was performing functions associated with the claims clerk there's also an indication in her testimony that so do we know i mean is that like sitting in front of the computer terminal and reading whether the numbers add up let exactly is that she testified that the first the first job which was a claims clerk was auditing claims that were filed with the insurance company to evaluate whether whether that all the information on the claim was accurate computing putting data into a computer system about those claims that presumably is keyboarding say yes or again and also conducting  an analysis of whether there's another entity that could pay those claims and her work history report that she submitted to the agency about her time at the insurance company she said she sorted and sorted mail but she also indicated that she audited claims prepared daily activity reports used a computer and wrote or typed or use small objects for eight hours of each day now to be clear at the beginning of her testimony she says when she started at the insurance company she was working almost entirely in mail and distribution but it's unclear how long she worked there and whether that will time yes your honor it's unclear how long she worked there and what this goes to is the ail they didn't break each of these jobs up and evaluate independently whether each one qualifies as past work under the agency's regulations didn't confront the evidence showing that she was working as a claims clerk when she was working at the insurance company and didn't explain how someone limited to frequent use of his or her hands can perform a job that requires them to use a keyboard for three quarters of each eight hour day ok thank you for testimony i think that in our brief we presented a cogent argument in defense of the claims corporal even though the vocational expert testified that it was often performed at for the job for the court to know precisely what the l g was thinking can you direct us to what you're thinking about c says three things it says light work and inability to climb ladders and the ability to frequently reach handle and finger to frequently use her her hands to do we know about  finger i mean if you're sitting there trying to keyboard you've got to be able to use your fingers and you're not going to hunt peck all day but so do we know how that relates to her particularly the cervical spine problems on the left side and well i mean i guess you know briefly me the the argument that this collapses into an r f c inquiry whether the r l j s r a c adequately captured  april and then again in may dr victor released her work with full restrictions her screen of her right hand having resolved and ultimately i think that the response of the agency's response with regard to our of c is on the only opinions in the record support the elders conclusion and in fact the field exceeded those opinions so the state agency reviewers doctors dobson and raise a pint that she was capable of a full range of life work with no additional limitations  jay partially credited the claimant's credibility and said you know she says that she can't manipulate constantly i think that will say that she if you know the record reflects that she can manipulate two thirds of the time a complaint about the pace too because you know being able to do things at a slow pace might not be adequate for work in the economy she says that when she was doing this mail and distribution work it was fast paced requires lifting sorting a bundles and so on right now her i mean vocational expert testified that at least vocationally that's not considered to be a fast paced job and again i think that i would refer the court to the fact that no opinion supported the inclusion of additional imitation he would also like to address briefly here we do have to draw a distinction between her real past work and the sort of subset if you that the vocational expert is trying to say well typically in the economy this is a lesser exertional job than in her past work so what's in that kick you over to step five where the burden shifts to the commission opposing counsel makes an argument in the brief that the l j should have been quired a more about the way that she performed her job because that might have had some kind of a fact on the analysis of how it's performed the national economy but i think this court has found many times that the d o t and the ve testimony is sort of where that information generally comes from and the ale jay inquired about it here got that information from the vocational expert it gels with his reasoning and its supported reasoning its reasoning supported by vocational experts testimony is supported by the d o t and it's consistent with the regulations and so that conclusion i think is is legally supported with respect to the claimants argument that the ale j o meta discussion of the twenty thirteen m g and the june twenty thirty in treatment note the m g confirmed a diagnosis of c sixty seven ridicul theory but that diagnosis had been confirmed the year before by an m r i i that was seen by i believe the council favor examiner and both of the state agency reviewers ridiculous the fee as reflected in our brief and one thing that i would point out i think some cases that even if some people are tough and they're they're pushing themselves through intense pain to stay in their workforce that's not what we're asking for that's too much well and the problem with that reasoning your honor is that it's incorrect under the regulations so the regulations say that if you can work despite pain than you are not disabled and that seems to coney and i agree that it seems draconian but you are simply if you can push yourself through and can fully perform work without concessions true under the regulations then i don't know that that i mean i guess i'll stick on that point you know what i would say with respect to the june twenty third treatment known is that noted the bicep to be intact so providing conflicting evidence on that issue so we have a cabin in the june twenty third teen treatment note the august twenty twelve consultation examination that noted no atrophy and the aug twenty third team treatment bears or bore in equal duty to augment the record and i think this is a bad case for this argument but it's an important argument which is that if you look at twenty c f r fifteen fourteen it says you have a duty to provide evidence in support of your claim but if you can't the agency will pay your doctor to give an opinion at no point did the counsel blow before the l j the same the same firm represents the claimant as represented her below either ask one of those doctors in june or august of twenty fifteen for medical sources opinion about the claimants functioning or even ask jay to go get an opinion from one of obligation to present an opinion from a tree and source to establish functional limitations oftentimes practical realities associated with a particular doctor or a person's financial limitations in getting treatment prevent the person from obtain others you know we've struggled with this before there is this concept that this is not purely an adversary matter and that the administrative law judge has the responsibility to develop the record but the burden is on the claimant from steps one through four which is this kind of case and if a particular somebody who's represented needs to at least ask i mean it seems that that's mr de lay's point what's wrong with that i think the primary limitation in this case was the  claimants financial limitations and actually getting regular treatment so why not tell the i mean for purposes of developing the record in this case why not get the ale j s part of the pro so we need to get one more opinion because we don't think the record before you is complete as a as a practical matter the adjudicators are handling a lot of cases and they don't take well to those kind of delays  this case is not completely about a failure of evidence the claimant alleged having manipulated difficulties she presented objective evidence of atrophy and weakness and her extremities and i believe that the ale j did not adequately consider that objective evidence supporting her allegations with regards to the work issue the claim it worked as a claim to prepare at anthem and the male j did not evaluate whether this was a mail sorter or claims