morning hunters charles tablet representing mr goodman i'd like to reserve one minute for remodel this case presents a variety of issues in a social security disability context and given the number of issues i have to limit my presentation this morning the first part of my presentation raises it an issue that's not yet been decided by this court and that is whether medical appointments of a frequent nature are sufficiently disqualifying for a person to be able to be employed and therefore result in a finding of disability i thought he was working nights what would prevent him from going to the doctor during the day he wasn't working nights he had the jobs when he came in did he have a job that he quit because it was it rick called for night time duties and he wanted to spend more time with his children he did but that was very short term type job tried if we adopt the rule that you want us to adopt wouldn't that be relevant to the administrative law judges determination as to whether the frequency of medical appointments would interfere with his ability to hold down full time employment would depend i think on the type of employment it would have to be determined on a fact by a case by case basis but the what would what do we do with hypochondriacs well i mean that would be present in the record i assume i mean i'm asking you to help me write the opinion here you want to answer what you say the question of first impression but i want to try and tease out how broadly you're asking us to rule because i can see unintended consequences here if we were to simply adopt a black leader rule that says if you have one hundred medical appointments in a year that prevents you from holding down a full time well in the context of this case mr goodman made multiple attempts to work after he left the service and it was determined by the judge that those attempts were unsuccessful work attempts you never had a full time job involving night work  also he didn't take the night job he just refused it because i think he tried to work it for a short period of time and it was a combination of not being away from the family and also his medical problems the residuals of his medical problem thought he said the reason he he quit that job was because he couldn't spend time with his children but he also had interfering medical problems if the symptoms from his medical problems the medical  he was subject to significant pain during the night or during the day both but he has a full time job now does he know it's part time it's a part time job with the rescue mission and the job ended the application for disability that's why it was amended to a close every because he's working too many hours to qualify earning too much money but but i understand he quit the record reflects city put paris company because he wanted to spend time with his children and it doesn't say anything else about reasons why it is that correct go work after hours to go to the doctor after hours well in hospitals and clinics settings with the exception of emergency rooms and hospital settings we have patients and doctors and therapist work regular hours like everyone else and you just can't keep taking the time off to unless you have a night job perhaps i mean a lot of people working at eighth i understand but a lot of different areas of the economy but this  fellow had over one hundred the relevant period of time was in the hospital or the clinic or a therapist over a hundred times your answer to my hypothetical about the hypochondriac claimant who just makes medical appointments because he or she imagines that they have medical issues i mean that would require this us to declare that they're disabled simply because they have lots of doctor's appointment we don't have that in this particular case we have a fifteen year vet who had four years or four tours and in iraq and four terms and terms tours in afghanistan and he was subject to twenty two close since i was i wasn't going to mention anything about about that but since you you you've got it up the record seems to support for tour tours and not  a is it your position he served eight not four times once in afghanistan three times in iraq i understand it was four in four four in iraq and said that he applied four times once to afghanistan and three times two are back on his d d twenty four team the medic military summary of services this information is reflected in his awards he's had three back surgeries one jaw surgery and he's got one hundred percent v a disability rating  with this frequency of medical appointments and medical visits the when that information was presented to the vocational expert at the hearing he said if you miss more than one day a month you can't hold down a job and obviously mr goodman has so many medical appointments that would interfere with normal work the next issue concerns the residual functioning to pass city assessment by the a o j she ruled that or she found that the claimant had a light exertional ability whereas d d s which is the agency that reviews these cases in establishes physical limits rated mr goodman at the sedentary level that fact alone would disqualify mr goodman from any of the jobs that were named by the vocational expert in response to the questions posed to the vocational expert we also have the v a decision rating mister goodman as one hundred percent disabled and that was rejected by the a l j on the basis that his activities of daily living his attempts at work and the v a system v a rating was based on speculation the attempt to work was ruled by the judge as failed work attempts so it seems a bit contradictory to say on  his surgeries gooden played eighteen holes of golf you know to ever have another surgery he worked went to the soon drove to the clinic for examination in twenty fourteen he says his golfing three times a week rebuilding this truck daily scuba diving twice a week riding horseback once a week participating in nurturing once a week glass blowing once a week an attending boy's got retreat most of those were prior activities before his disability the many fourteen the reference to golf is the fact and she never asked the claimant about these activities at the hearing for any kind of explanation i know he was a dispute not when you go out with your buddies and sit in a golf cart while they're playing golf and that's what he did he wasn't playing golf per se he was riding with his buddies in a golf cart but he also testified now because that was never asked the mystics of the record understand v a rating based on speculation a comment comes from the fact that the v a examiners were uncertain as to whether or not the disability the biggest portion of the reading of the disability was either from the p t s d or the brain injury and they said that the symptoms of both can be confused but when combined it was very significant thousand and thirteen was negative for cognitive functioning government and isn't that objective medical evidence which gives the claims of head injury you know what if you read the v a rating decision itself in the summary of the medical comment that is the some in symptoms symptoms which would suffer boredom and there's an objective medical evidence that contradicts those symptoms whereas a oj not able to determine which is more convincing when you put the two pieces together there's no speculation the v a doesn't give one hundred percent ratings based on speculation based on medical evidence and the medical evidence in this case supported that such a fall if that were so we'd have to grant a hundred percent disability when it when the a finds one hundred percent disability right now this court's mccarty decision in two thousand and two says that great weight should be given to the v a decisions less there's an explanation of why they shouldn't be but we also said that not experienced a single case or one hundred percent be a disability rating from the v a was given any significant effect and we see a lot of those cases in this area because of the proximity of the various military bases and retiree population that's here and uniformly over the years jason really not said much about giving any effect to v a decisions in fact the new regulations that have been published and are going into effect or have gone into effect even further distance them eight see from the a decision saying we're not bound by any other agency decision of the federal government is going to  look at the medical records that were the basis for that decision will make our own decision what that l j i'm looking at pages thirty two and thirty three of the record i guess nine and ten days decision does reference the occupational therapy report from madigan army medical center and it includes on the top of page thirty three reference to the function report which i assume was from  oral interview of the claimant in which he stated that he got his kids ready for school participated in employment seeking activities did light household chores fed and bathed his children put them to bed  yard work cetera and basically that the administrative law judge cited that evidence to say you know i think his his daily activities or are more pervasive than then he nail you have a contrast that with the lay witness evidence from his wife which the judge really didn't consider there were two lay witness statements from the wife one was a third party function report submitted shortly after the filing a claim and the second was a later report submitted by her in which she talks about the fact that it's very difficult for him to get up in the morning because of his physical problems she has to help him days she has to help him get dressed she has he doesn't do a lot of activities around the house he used to be a great cook he can't do that anymore and that was not considered by the judge in the isn't that what he's talking about on pages thirty two and thirty three pages nine and ten of his report to me directly addressing the testimony offered by the wife peggy you can't say he didn't consider i mean you may not like how he considered anybody certainly didn't ng she certainly didn't ignore that evidence the judge didn't give any weight to that she should see mentioned it but there's no weight given to that report well she she concludes the last full paragraph at the bottom of the page thirty two bit as to activities of daily living that the claimant has mild restriction and then goes on to recount the wife's testimony so i mean are you really arguing about how the say evaluated the evidence is that what you're asking us to do sort of a reweigh the evidence no i'm asking the judge talked about it but she didn't talk about what consideration she gave to it she just mentioned that it was there she  talk about first i want it all i'm looking at a long paragraph with a very small type where the ail day goes into great discussion of the wife's testimony i'm not sure i understand your argument well she sounds to me like you conclusion not with the procedure that the ails a fall like i said before she didn't say to what she talks about and she mentions it but she doesn't say what weight she gives to that testimony in that case law requires that well isn't that what mild restriction mean to me that's an indication of her conclusion based on all of that evidence and she's willing to acknowledge that there are some some limitations but that she  good morning may it please the court jeff staples here for the commissioner of social security to ask that you affirm the district court's judgment because the decision is supported by substantial evidence as counsel pointed out there are a lot of issues in this case  i'm going to try to hit the high notes but if the court has any got a specific questions please feel free to interrupt me on the issue of too many medical appointments equals disability social security ruling ninety six dash  really addresses this pretty squarely and that says that the residual functional capacity assessment can include only limitations and restrictions attributable to medically determin so the argument here is that a scheduling conflict between goodman and his doctors is synonymous with a disability but a scheduling conflict is not a medically determinable impairment so that's why the a reasonably declined to include the frequency of medical appointments in the residual functional capacity assessment the nevertheless found that goodman was limited to light work with some additional restrictions and in doing so the l g took a look at all of the evidence and reasonably reached that conclusion for example we talked about dr platters opinion for a little bit dr platter thought that goodman was limited to sedentary work but just a few months later goodman testified that he was lifting fifty pound boxes throughout the day which seriously undermined dr platters opinion and so they l j reasonably chose to give that opinion less weight as for the v a disability rating the v a was under the impression that goodman is one hundred percent permanently and totally disabled permanently disabled however there's no dispute that goodman went back to work shortly thereafter at substantial gainful activity levels so they took a look at those two things in addition to the object of medical evidence that the v a referenced that tended to contradict the allegation of disability and chose to gave it less weight for for valid reasons  position regarding the supplemental authority submitted we submitted that in an abundance of caution just because they seem to touch on possibly similar issues i don't have any specific argument related to by stack would you make some as it relates to this case question presented and what the supreme court granted the answer cheri i think it you would not have presented think it really applied to this case assuming it applies to this case what's the government's vocational expert and ask the questions that he had about what was the foundation for the experts testimony and so he asked some questions about how was the expert depriving the job numbers that he was providing and the expert fully answered those questions and then following that there was no request to see you know how he did his math or or whatever it was that was you know it was kind of an over there questions situation so he was he got the answers that he wanted at the administrative hearing and then it was only after the l j issued her decision that there was this the claimant's attorney asked the vocational expert to produce documentation supporting the testimony that our member who he or she was giving here  who jobs available national economy i believe so your honor i don't remember exactly what the evidence they were seeking to get was but i believe so here there was no such request at the administrative hearing so here goodmans counsel question the vocational expert got answers to his questions and did not ask to see the underlying the data underlying it no one asked for well they went and got their own expert the yes your honor that's but that's only after the fact and and furthermore it's after the decision so but it's part of the record  it's part of the record before this court but it's not part of the administrative record your honor but it was before the agency and in the in the decision is not final until the appeals council rules on the appeal right that's correct your honor so goodman submitted the extra vocational evidence to the appeals counsel but the government didn't supplement the record with whatever it was that the had relied that's correct the appeals counsel did not put that evidence into the record and under taylor the the court's not permitted to review the appeals council's decision but sentence six of forty two u s c four o five g provides an avenue for claimants to bring evidence that's absent from the administrative record in front of a court however there are requirements that the new evidence must be material and the claimant must have good cause for not having presented it earlier now in this court's maze a decision maze be massive which is cited in our brief the court considered evidence that was submitted to the appeals council but the appeals council did not include it in the record just like here but the court held that the claimant did not have good cause for failing to submit it to the ale j earlier and that's exactly the same as here there's no reason goodman was on notice of what the vocational expert testified about at the administrative hearing his second vocational resource commented on the testimony of the vocational expert at the hearing but there's no reason he couldn't have put that in front of the l j before the l g issued his decision or if he had thought that he needed more time to get that extra evidence he could have asked for it but he didn't so under this court's precedent in mays he does not have good cause for asking for sensex relief based on my recollection is that nobody asked about it i understand that but i guess all i was trying to determine was whether or not the ve had the information in his or her possession but because nobody asked for it it was never that would be speculation on my part although i know most of the counsel would know more about that he does administrative hearings but i think most of the time they use a computer so i think it's possible that that he had it i don't i don't know your hon like you on the issue of the vocational information the request for a subpoena do just take them to ask the vocational expert to bring the data upon which they were going to rely for their testimony to the hearing was not granted or denied it was ignored so why didn't you ask for it when you were cross examining well i didn't ask but it's been my experience over the years that judges routinely deny such a request you know but i mean if you're in the middle of a hearing and you're crossing the witness why can't you ask on what basis do you base your opinions well me show me the evidence well you've asked two questions upon what basis we always ask and they did they there's a source like us publishing our job browser pro and if they don't come up with that it's based on their education and their experience which is you know what that whatever that  means but they don't bring typically any information with them to the hearing what they do is they just talk about jobs and numbers and nothing else and that's typically on a computer it would be if you didn't ask a question because they don't usually have any they don't have problem is is that the depart the government department of labor does not identify job numbers by discrete deal teco that's that's not information that's available from the federal government there's two non government sources for that information it's either us publishing or job browser pro from skilled trade was your answer my question is there really isn't any other information available that would support their conclusion and there are the two sources a job browser and us publishing are available but often times they give testimony that doesn't match what those programs provide and that was what happened in this particular case the first two jobs that were identified by the  ve the ve we had to hire clearly provide documentary evidence that showed that the job numbers that testified to by the v a at the hearing had no basis in the support and it was submitted to the appeals council they reference having received it but they rejected it on the basis that it doesn't change anything which seems a little odd when you can say with that because the third vailable job was housekeeping you know housekeeping and they ve said that's well beyond