may please the court my name is john cyclist i have privilege to represent robin nappy hair here before the court for the students watching i've been practicing for thirty eight years and every time i come before this court my knees get weak and i get nervous and so that's a normal thing for the court i would point out if i stutter or stammer it's partly because of the nerves i never get was wrong and in the magistrate's order but she was sixty at the time of her application there was a hearing in september of sixteen september th somewhat of a significance because september th sixteen she underwent right knee surgery and the judge was aware that the judge found that she had severe impairment heart related coronary artery disease degenerative disc disease peripheral neuropathy for those of us that are old in the hands and feet were was not found to be an impairment that's one of the errors that the team made and the district court missed simply ignored i don't i don't know how you ignore that one of the issues we have going on in the district courts with these facts that we file in our briefs and the government attorneys don't file so they don't really dispute the fact that she is peripheral numbness the medical records october th july th back to november of this side of this is your point that having  needs to be considered at step five in being provided to the vocational consultant which it was not you're not contesting contending that it was a listed impairment are you i don't think it meets the listing for impairment  so just in response to judge by his question i want to make sure i'm not losing your train of thought and you think it was a severe impairment and it should depending corporators it to the the drill functional capacity is yes that absolutely is there a place in the record where she  d about the how is this limited to her she talks about the fact that when it bothers her the only things that she can do is that she constantly moves her feet and can you work with that i don't know that should've been submitted but the real problem is she says i tried to think about something other than the pain in my feet and one of the problems vocational consultants consistently testify about is whether you're staying on past where the you can focus where the you can concentrate and so if you're dealing with some type of job that tippity and you're tapping your feet because they're hurting so bad in your trying to think anything else are you going to be able to was pins and needles in feet and hands all the time constantly move or tap the feet try to think of something other than pain in her feet ok so all of that is that one the one citation you ok thank you so the failure to include that allows the judge to do two things one he can find that she's not credible and so we can disregard her testimony because we can find she's not credible about her think the well and you can use that to say because she has testified that she's testified she's doing those things and i do not find that's a problem so i can credibility because you're complaining about things that don't exist is your bigger problem that there's other reasons to doubt her credibility and therefore even though she reports neuropathy and i think medical records are due to that there is reason to doubt  to the extent that the the effect of not that the is dependent upon her testimony then there's reason to doubt that well i think st you need to consider that and then ask fail jay to give you those specifics to identify why it should be doubted and those don't exist in the record because if you don't consider it as a severe impairment then you don't need to go back and say i'm going to disregard the testimony which this circuit has repeatedly told these administrative judges if you're going to disregard her testimony about not focusing and tapping her feet you need to point to the specific record that a dental spies why you don't believe that and there is none here because the medical records show she's got the numbness and tingling in her feet and her hands but in her feet especially the knee issue i mean she has surgery on the right knee a week six days i think after the hearing and in terms of finding that she was able to do substantial gainful activity the records show because the heart issues she had dodged this knee replacement six years before so i don't know from reviewing the records how the administrative law judge found her testimony as to or need complaints which she says she would elevate she reclined get her knee up an air for the pain how you can deny that credibility when it's a condition that required surgery six years before and she ultimately underwent the surgery overcame the heart issues that the fear of the heart issues that i think she faced  e testified that she'd could only stand for five to ten minutes because the knee would burn and she'd elevate the need to avoid cramping the judge found that because her diabetes was under control she didn't have peripheral neuropathy an impairment i don't know how you get there there's no medicine behind that statement just because your diabetes gets under control doesn't mean the sequelae of diabetes is soft i mean that's a progressive disease that it it doesn't get better there's no doctor that says it should get better l j relied upon an independent doctor dr donaldson to say that you now i don't think she's given me a consistent effort here donaldson didn't even find the peripheral neuropathy which is and contested in the record so if she's ignoring one of the medical conditions she's presenting with it's easy to say i don't think she's putting out as much as she could the independent doctors the only one who found that there was any ability to do s g the treating nurse practitioner and we're dealing with rules before social security recognized them as medical experts and so we have to accept that here but the nurse practitioner found her condition is bad enough she can't work donaldson he ignores a peripheral neuropathy he goes on to say i think she ought to be able to do at least some kind of seated or light work part time you know maybe full time so the a l j latches on to that and says this person can do full time work because the doctor said you know there's a possibility they could do something i think speculation is never been allowed by article three courts it's it's you just can't speculate i'd reserve my the remainder of my time thank you the commissioner as did the district court acknowledged findings and on this throughout the record that is not conceded but i mean though that is not an issue those are symptoms however none of these doctors prescribe any limitations related to these findings of numbness and exams generally showed her gait as normal she didn't have any difficulties walking she's had multiple fluid examinations where findings were found normal and in fact where her gait was found to be abnormal dr donaldson reported that in front of him she shows significant difficulties walking in leaning on walls leaning on her husband but when she walked her car and she was not aware that she was being observed she walked out assisted with out any problems that gait and it's led dr donaldson to believe that she symptoms of neuropathy because the finding no credibility implicit and entre down since observations yes we it was reasonable because the only thing we have to go by are her symptoms and when she'd demonstrated her abilities the symptoms did not appear to limit her as much as a napier demonstrated the ability to maintain the walking and standing requirements of light work i know there was some issue with ms napier's position that dr donaldson found that she was capable of light work at least but i think that is consistent with his notes that provide to the vocational expert so like you credibility is the reason that wasn't put to the expert lack of credibility and lack of ject of support for limitations from climbing handling bilaterally bladders exposure to vibrations and extreme cold so the impairment was not symptom here's what i think the record says i think the record says that she's reporting bilateral neuropathy and that they're not doubting that and that there isn't anything other than her own testimony to go by to assess the extent to which is a limiting factor is that correct that is correct and as a as a symptom you know laypeople can understand that a symptom can be present without a limiting factor neuropathy is a range from extreme to mild and hers has been noted as mild multiple times throughout the record were guards to her knee impairment closer to the decision she has surgery and the physical therapy notes appear to know that she showed an abnormal finding on the right foot so there's objective evidence that they're finding this this isn't just her saying my hands and feet are tingling as the only evidence secretary scuse me the commissioner that's old  the commissioner has in front of her when they make the l g decision is that and the defendant argues this at page eight of the brief donnel dr donaldson wrote quote it is possible that the abilities demonstrated may not represent her maximal capacity close quote so that's what the commissioner standing here before asking this court to adopt as the standard form for medical records that can be relied upon for a finding is a possibility that's what we've got here if that was really the question failed you had a duty to develop the record get more information from sin the back for another medical exam there's a lot that could have been done thank you you're on if you want to comment before we sit on that and davidson's observation of a walking without any problem when she didn't know she was being you know it was not explored at the hearing it's one of those things when you go in you don't know what the l t s going to focus on what they latch onto to find is something significant one of the things that happens when you've got numbness in the feet is you've got to watch where the feet are you you've got to know where they are chris you just don't have that propre any since you don't know where they're at and so if you're in a close room if you're in an area where there are things close to you that you can fall against and you're not looking at your feet because i'm trying to look at a doctor or nurse or somebody you can feel along and hold yourself up when you get out to a parking lot where you have a big open area and i can watch where my feet are it's possible to walk and that's one of the things that i think is consistent in her testimony is that numbness when when when you have that problem with walking requires you to look at your own feet and i think that's that shows it's really going on here thank you