classified as a proceed really intricate title to case as a result we're seeking remedies in the alternative on the basis of his original title to claim for benefits we are seeking a reversal with instructions and the underlying basis of the allowance was essentially the same his severe and debilitating headaches we are seeking a remain and pursuant to sentence six when mr robertson filed his original application for benefits back in two thousand and nine he had an alleged onset date of january first two thousand and nine in addition to some other physical and mental impairments his headaches were at the front and center of that particular application his headaches were so severe and debilitating he had them pretty much ideally basis when he had them they lasted for two to four hours and he went to great lengths to seek treatment for those headaches what was the major there are actually to your honor the first primary error that the underlying a l j made you mean number one l j number one was based upon the analysis of the medical evidence there was a psychological exam a physician who examined mr albertson and indicated that in fact he did have severe mental impairments and those severe mental impairments were depression anxiety based on her opinion they were directly in a related to the severe and debilitating headaches she was suffering from she also gave him essentially three severe limitations in the workplace she indicated and i quote he would have severe difficulty tolerating ordinary work pressures severe difficulty interacting satisfactorily with others in the workplace including the general public and he would have severe difficulty observing basic work and safety standards in the workplace what are the ale gee do with that testimony the a l j said with respect to that particular opinion he was going to discredit it based on a non examining psychiatric opinion that not examining psychiatric opinion was basically that mr albertson had no severe mental impairment and as a result would have no else better the first to say so there were no objective findings to explain those subjective complaints no history of psychiatric hospitalization or a long term mental health treatment anti anxiety medication works i'm paraphrasing but there are a number of additional i could go on including his daily activities being inconsistent with both of mental and physical limitations claimed so why something that sufficient with respect to no objective medical evidence of evidence of a psychiatric impairment in fact dr cheryl's report was based upon her own observations of mr albertson during that particular examination she did do some psychological tests you know him on that particular date and in addition he was prescribed medication for inside he on an ongoing basis right which worked well controlled the symptoms and  then he goes on at some length to describe why the daily activities are inconsistent including our psychological grounds where you know there's a report of good relationships i'm paraphrasing obviously  first two or three paragraphs of pretty intense explanation and i know that your client has a different view of it but we're just reviewing for substantial evidence one other way that the  with respect to mr albertson subjective symptoms of his headaches the a l g really did not look at mr albert his headaches in terms of the the frequency and duration which are really at the hallmarks of any individual who suffers from headaches he have reported the frequency information of headaches priest consistently to every single neurologist that he saw and he saw eight to narrow so narrow surgeons that he also treated with and that's the other way the second major way that the l g s decision fails is within the residual function the passage of mr alberts and he found him capable of light work that's the only limitation he did not take into account whether or not his j made no reference to that visit or their findings that is correct runner and in fact while he was at the mayo clinic and he went in the dead of winter which is something for those of us who live in southern california to endure he treated with not only  never questioned the existence of mr albert since headaches rather question what the cause ation was of mr albert says i don't really hale trails questioning their existence either because one of the findings  is that afternoon erogenous in the plural recommended tapering off pain medication as a way to decrease headaches that seem to help so he's not questioning their existence he's saying i'm looking  at his daily activities and i'm looking at these other factors to determine that they're not interfering with his ability to work if reasonable minds can differ but we have to defer when judge what you have to be the first ok relied on mr robertson's activities of daily living he did not make the leap that it must make between how those activities of daily living would actually translate over into work activities on a regular basis in fact he cited to the fact that mr attended eyepiece of of one of his disabled children well i p's are quarterly there but and sometimes by yearly there but once every few months mr robertson's testimony was in fact that his activities of daily living were quite limited by his headaches now fast forward once mr albertson's original case was here at the court of appeals he had a hearing in front of the second administrate of law judge that was a fact that we disclosed in our mediation statement and once he had that hearing the second a adjudicated him to be disabled looked at this medical record in its entirety l g number one declined to do that l g number two however looked at the record and said there's something here but i'm not exactly sure what it is i need to have a medical expert come in and help me flesh this out l j listener did that a medical expert appeared and testified that's dr linda johnson and essentially she stated that the severity of mr albertson's headaches was very well documented in his medical and his medical records and in fact not only was it well documented but she said and i quote i believe these are really great medical records he's seen the doctor often he's tried many different techniques he's been very compliant his pain isn't usual it's not a classic nerve pain it's almost like a nerve pain kind of in his forehead you know it's quite different from a migraine but quite severe as a result of her review of the medical evidence she indicated that occipital nerve blocks had been unsuccessful she believed the records established that he had headaches four times per week even after he had had the medication taper prior to having the medication taper down he had actually had the headaches on a part of her opinion with respect to his work related limitations if not you question it's not sure not unusual i should say unusual not unheard of you have to proceedings in the second one comes out differently you kind of go to school on the first when you figure out what you did wrong first time to make a better they're showing the second time isn't it possible to have to weigh all js hear a case involving the same guy different presentations though and come to different conclusions it might be but if that occurs and in a case like this one there least one place in the record and now i'm forgetting where where there was a finding that the headaches became worse over time so that and that's actually fairly typical in the cases i've seen where there's a initial  and a new hearing for a new period of time with the granting of benefits and the most common thread is well things got worse and misremembering isn't there some evidence to that effect there are cases like that in this case and there was at least one now state this case the headaches did not work in fact the headaches improved they improved as of february two thousand and eleven from every day to four times per week so in fact after the medication tapered after that original period of time from his underlying claim his headaches improved they were worse before but even with the improvement were so severe that they would have kept him from being employed on a full time basis according to l g listeners physician the way that the magistrate ultimately reconcile the two i thought his testimony must have really bad headaches twice a week not every day twice but in the second hearing his testimony was that he had really bad headaches twice per week and that was what formed the basis alternately of a listener's residual functional capacity assessment her residual function capacity assessment differed from her house in that she limited him to light work twenty twenty pounds frequently ten pounds occasionally he could sit and stand six out of eight hours for both no letters or heights no concentrate exposure to smoke and dust gases and he would miss work two times per week due to his headaches and as her bases she indicated that she was not only president mr albertson's testimony she was credited in the testimony the vocational expert the medical expert the medical records as well as his medications taken which was also something not taken into account by just one child in the first proceeding so you don't get two minutes or issue for any of the questions you know not thank you thank you very much good morning your honor seals of the theorem behalf of the acting commissioner of social security carolyn cole then i would like to start first with listeners decision and the reconciliation of the two applications because the district court did address this issue it's an circumstances you can't find that here judge rosenbluth looked at both decisions and she said that the first day found the claimant was not credible claim it has not challenge credibility before this court that's that's simply not she has not done that so with the second a l j found the claimant credible and you can see that because in her decision in the second hearing she specifically says  six ninety of the s c r the rationale for the decision is the testimony of the claimant from the prior hearing as well as this one location expert and a medical expert so that's three different bases for her finding that this claim it was disabled and the first one is the claims testimony at the may two thousand two thousand and thirteen hearing where he clearly testified that his conditions had worsened he added a cardiac condition you specifically said that got worse in may two thousand eleven he said his diabetes became insulin dependent in january two thousand and eleven which is the same month that r e l g issued the decision was healthy so that those are bases and then you have this medical expert who looked the same evidence and had a difference of opinion but the fact that the claimants explained his headaches the same way since two thousand and seven actually counts against him if you look in the record of page one forty six in two thousand and eight he made the most money he's ever made over eighty two thousand dollars if his headaches are quote unquote debilitating excruciating how could he have earned that kind of money in two thousand and eight after they started if they've been the same this whole time then all we have is a difference of opinion credibility finding from l j number one yes right now but that difference alone in your view commissioners you is not to fish and you know to to make these two two decisions irreconcilable yes if i understand your question that makes them reconcile because what because one may be because of his headaches he's limited to work that's a reasonable substantial evidence basis for the first day to have concluded the way he did we were talking about the credibility for the we're talking about his personal credibility her right what how do we know that had the yale j taken the male clinic new diagnosis into account it wouldn't have changed his assessment of the other doctors ok well that that's a good question because if you look at what happened at the mayo clinic first of all it wasn't treatment you don't it was he went there for a second opinion that's not treatment he went there he had diagnostic tests not treatment if you look at those records there is not a single reference in there to work related limitations the doctors repeat what claimant says that he's been on disability but he doesn't say when he's been on disability and as we note he worked he may or eighty two thousand dollars during the time he's had these exact same headaches so the mayo clinic doesn't change anything he what happened there was he got a different diagnosis it doesn't change anything about what he was complaining of it doesn't contain any work related limitations it doesn't even though you know that one did we did find that doctor dr whalen looks at the mayo clinic evidence summarized at the l g is aware of that exhibit he's looking at it and again there's nothing in the mayo clinic miss miss sister residual functional capacity not talking about his credibility but because of the way the way the doctors what's the remedy here if i'm not going to concede that but if that were the remedy would be to i guess remounted for further proceedings if you feel that way but let me reiterate that there is nothing in the treatment or the records from the mayo clinic there's nothing in the u c l a experts there's nothing in all of claimants massive treatment history that says anything about work related limitations dr klein did that dr klein found late work and as far as far as  to the first with either direction to reconsider so passion or just a word benefits those are the most of the options we would have well there's no reason the word benefits i'm not asking you if you agree with that i may ask you what the options but i don't see how you could do that just part part of this record is that this claimant has been complaining of these absolutely debilitating conditions headaches for a very long period of time they clearly weren't for all of two thousand and eight and with the second application and i would also like to point out that in spite of his allegations that is headaches were exactly the same since two thousand and seven in two thousand and eight dr whelan specifically said he doesn't have any headaches and he doesn't have any skull pain and  that is huge for sixty of the original records so it's not exactly true that he's been saying the same things for the whole point but at the same time he earned eighty two thousand dollars while he had the same we've got about two minutes in change with yes thank you i'd like to address a couple of the things that the commissioner stated with respect to mr albertson his alleged onset date in the underline case case number one was january first two thousand and nine he needed team he was on his medication he testified that he was making mistakes and ultimately at the end of two thousand and he couldn't take it anymore and so he stopped working effective two thousand and nine with respect to his alleged onset date in the second plane there was a jurisdictional barrier he couldn't allege a disability onset date prior to the first unfavorable decision with respect to dr john pease testimony in the second hearing she provided a retrospective medical opinion where there was overlapping medical evidence from both periods of time she indicated that those limitations would have been in place as early as two thousand and nine would basis would we have to remain for benefits as opposed to reconsideration with respect to remaining for benefits that would be on the basis of the underlying appeal and that would mean that we would credit dr sheryl's opinion with respect to mr albertson's work related limitations which were severe and also the testimony from the vocational expert which was based upon the fact that mr iverson would miss work three times or more per month due to his headache limitations from our perspective using the three step approach that was articulated in garrison and then again and try clear and burrell there can be no serious doubt that mr albertson is disabled he's been adjudicated disabled by the commissioner now that retrospective medical opinion from dr john indicates that he would have been disabled back to two thousand and nine that can be used with respect to serious doubt under the serious doubt standard we can look at at the record as a whole and that would include the second administrative record which is the period of the first disability for winter when the period of the first disability is january first two thousand and nine through january twenty eighth two thousand and eleven in the event that the case is free man and as opposed to award benefits we respectfully request that it be limited to that scope of time under that means just so we have some real life under standing it is how much money is involved in that period of time mr robertson's p i a s is in the range of one thousand six hundred thirty dollars per month and for a younger