good morning your honor may it please the court to mr bracket time james tree i'm representing miss roche counterclaim for disability benefits she's the claimant that has an eighth grade education special education background difficulty reading and comprehending  significant problems with many physical impairments due to her morbid obesity her degenerative disc disease her anemia and her frequent and uncontrolled bleeding in this particular case the administrative law judge found a rather detailed residual functional capacity that was for less than a full range of sedentary work and included twenty six non exertional limitations as part of that we start back at historically with heckler versus campbell which is the us supreme court case where the second circuit had found that campbell could do the full range even though he could do the full range of light work and had no not exertional limitations that the that the  commissioner could not use the grid rules because he was an entitled to an individualized review and entitled to a vocational expert at his hearing well the supreme court has asked not right they felt that although it's true that a person is entitled to individualized review and entitled to testimony at a hearing where it's normally the majority of the of the evidence is a deuce through testimony and hearing that in this case in campbell's case that since he could do the f the good rules specifically were met and followed and so that that failed jake although that the commissioner had the burden of the stablish in other jobs they can meet that burden through a taking administrate of notice or  exertion a limitation that he had to shift positions every thirty minutes that that one nine exert the limitation required vocational expert testimony in this court remanded that because that alle j did not receive  dale j get get his get his proof from the agency's position is that you get your proof either from a vocational expert or you get it from the the grid rules but it has to meet exactly can only be exertional limitations you can't be shows offensively a continuing problem of persistent pain that prevented her from doing any kind of work and sudden terry were well they l j found she couldn't do  lights light work they all jay found she could only do a very limited range of sedentary work ok i rephrase my question so i'm still trying to stand with her as i understand she's obese i understand she has a host of medical issues that not meet that burden of identifying jobs that she could do based on the l g s own residual functional capacity because he recently acquired to have a vocational expert and so answer my question that i'm trying to figure out what what the medical diagnosis is here that this is making her completely unable to do any work at all when i see it i see a long history of medical visits for a variety of issues but i'm trying to figure out what the common thread is your honor that's not the issue in this case i'm sorry it's the issue in this case is that mr roach she met her prime the patient case of showing through step four that she can't do or pass relevant work right burden shifted to the commissioner to show that there were jobs they could do the commissioner did not g s finding which we do with the two year gap in the medical treatment well we throw it out because it's not true because she had treatment twenty seven of thirty five months between her alleged onset date nail jay herring that was a factual error that  its credibility finding it looked to me like she basically got her medical care from hospital emergency rooms that she visited over a long period of time presenting with a host of different issues and that's why i'm trying to get you to explain to me there's hundreds of what it is that prevents her is that any one thing or is this that she has so many medical problems that she can't do anything it's a combination of all those says if a person can never climb rance or stairs they should be found disabled and that in all work there's going to be a requirement to climb some ramps or some stairs that's s s r eighty five fifteen he's the agency's policy that if the judge doesn't use a vocational expert then the judge in the non exertional impairment he has to either rely on some evidence it's not substantial evidence is not no evidence there's no evidence here that her ability to never use ramps and stairs and that's not what mr roach is saying that's what the a l j said l j said she can never claim a ramp or a stair never now that was supported by two state agency physicians who said that she could never clim stairs if supported by the medical expert at the hearing who testified that she could never climb ramps or stairs and he agreed with the state agency physicians and it was opined too by the consultant examiner that social security hired that said she could never climb one of the issues that you attacked is the issue with regard to obesity could you explain to me in the record where that shows she was unable to do any kind of or because the a word line on the  that there were observations by the treating physicians that she was obese but then he said there was little evidence in the records to suggest that roach it was limited by her obesity ok so that finding not supported by substantial evidence in the record look at the l j's decision is very inconsistent he said there's this is weak evidence in this case when he was evaluating credibility but he said when he had value it are if he says she can do less than the full range of sedentary work she's in addition to not being able to do the full range of sedentary work she's got twenty six nonobservant limitations based on the medical evidence missing on one and i don't understand why you're being so hostile to my question i'm just trying to understand where in the record you think that the l g erred with regard to consideration of obesity as it might prevent type of work that would render her completely disabled that's not the issue in this case respectfully your honor the issue in this case is not whether there's evidence that she can that she has to produce that she's completely disabled she met her burden at step four the question in this case is whether or not the a l j has produced evidence if there's other work she can do by that's the issue in this i'm looking at that and j is saying in essence i don't see a nexus between her obesity and her inability to work ok let's assume that's true well that's what he sat ok let's assume it's true i'm going to say evidence is correct then his decision still needs to be remanded because there's no evidence to support the fact that there's other jobs she can perform a step by another example other taken from the algae his own residual functional to pass and finding other than ramps and stairs is his opinion that miss roach a pet only occasionally balance the need to occasionally balance requires a vocational expert testimony so security really ninety six dash nine p regarding balancing says  individual is limited in balancing only a narrow or slippery steps that may not significantly impact sedentary base but if their ability to balance includes walking on even surfaces that would be a very significant  their medical evidence to support the idea that she has trouble balancing on level ground there was no evidence in the record that she had been a problem balancing on narrow surfaces moving surfaces slippery surfaces what the evidence was on the record was from the state agency physicians that she could only a pow only could occasionally balance due to her severe obesity and due to her degenerative disk disease and due to her a sensory deficits in our legs how do we square that with her statements to the treating doctors that she was continuing to walk or children to school as late as january eleventh two thousand and eleven that's no there's no inconsistency there at all your honor  quote this from s s r ninety six session one thousand because this is the essence of the case it is important to state in the residual functional capacity cessna what is meant by limiting balance in order to determine their remaining occupational base a l j didn't do that step five the burden is on the l j to come up and show that there is jobs that this lady can do based on his own r f c so we're not attacking r c this is not like the last case we heard this is a different case this is a case about where we're accepting the residual functional capacity of the ministry of law judge but we're showing that a administrative law judge his own findings are not supportive that she could do other jobs without vocational expert testimony there's other examples no concentrated exposure to noise now social security ruling ninety six ninety talks about noise it says all work environments until some level of noise restriction on the ability to work in a noisy workplace must be evaluated on an individual basis normally a vocational expert is necessary now that's not our find the judge that is the a l j signs that she cannot tolerate contrary exposures to noise then mistreated law judge found that she cannot concentrate exposure to concentrate good morning and may have please the court my name is christopher brackett on behalf of the commissioner i'm asking the court to affirm the judgment of the district court in which i've held the ale j s findings is supported by substantial evidence that is that his findings were reasonable inferences and reasonable interpretations of the record when he concluded that the spy in this roaches severe mental and physical impairments to retain the ability to perform perform unskilled sedentary work and was therefore not disabled and even though there were limitations those not exertional limitations did not significantly erode the occupational base of a sedentary work but you address specifically the restriction with respect to climbing ramps and  now our position here is that sedentary work being work that's performed primarily from the seated position and sedentary work you're seated for at least six hours a day that occupational base is not going to be  significantly by what i heard council argue which is unique in my experience is that if a in administrative law judge finds that any of those  alternative like every person would have to alternate sitting and standing and that you know consistently in our ruling says then limitation that would require vocational expert testimony but when you look at a lot of the postural here the pos limitations being those that addressed stooping crouching kneeling crawling each and balancing the ruling state that when when you can perform those out at least an occasional basis they're not going to have a significant impact on the field of aachen on the occupational basis sedentary work the idea there is that a job that sedentary is going to be requiring you to be in the in a chair for six hours with scattered instances throughout the day up by that very nature you know you have six hours of sitting those two hours remaining well the ability to do something on an occasional basis means having being able to do it for up to two hours over the course of a day aren't really significant with the exception of climbing and i do want to point to point out one error i made in my brief i want to correct out on the record and i said during my argument that climbing was included in the occasional limitations of climbing ranson stairs would not significantly impact the entire field of two hundred occupations of seven kerry work that the grids take note of administrative notice of and also turning to  the dust and noise and other environmental limitations every single one of the environmental limitations considered by the elder found by the l j was a limitation on concentrated exposure this wasn't a limitation on all exposure or even moderate exposure the claimant could not tolerate concentrated exposure and eighty five fifteen s s r e d five fifteen addresses these environmental limitations and discusses that concentrated exposure is not going to have a significant erosion of the of the occupational base that's on page eight of eighty five fifteen when a person has a medical restriction to avoid excessive amounts of noise dust etc referring back to etc referring back to the other possible limitations like temperature environmental limitations like temperature extremes the impact on the broader world of work would be minimal because most job environments not involve great amounts of did not significantly road the the field of occupational of sedentary occupational days what did the a l j say about ms rush's ability to balance so you just found that she could balance on an occasional basis you didn't offer any qualifications about balancing on rough surfaces or anything so we take that to mean all that all balancing on an occasion but you can do that occasionally throughout the day since sedentary work is mostly seated and doesn't  a seated position the balancing wouldn't be implicated not until one rises in half so walk around the office that would be a situation where balancing is implicated but if she can maintain that and do it for two hours over the course of the day scattered throughout the day then she can perform seven terry works fight that limitation that's your argument not what of ok experts correct the the our position here is based on the administrative notice of sedentary tasks and that she would benefit from additional time learning new tasks now that this these mental limitations do not significantly erode the unskilled work that is contemplated in the grid unskilled work work that lead needs little or no judgment to do simple duties that can be learned in a short period of time requires for basic abilities understanding remembering and carrying out simple instructions consistent with what the  found making simple work related decisions the l g a didn't conclude any limitation in that area responding appropriately to supervision coworkers unusual work situations again the l j did not find any limitation in that area  dealing with changes in a routine work setting the algae did not find any limitation in that area due to mental in the patients do not significantly affect the ability to form unskilled work either i do also want to point out that i'm not up here to tell the court that non exertional limitations can not affect the sedentary occupational base i certainly can if one of these unskilled imitate these limitations in mental functioning address the ability to interact with coworkers or supervisors that would be something that could potentially a roadie occupational days if they were manipulative live imitations on reaching handling fingering grabbing that sort of thing that would affect the occupational basis and terry work was able to rely on the grids which showed that the claimant was not disabled was a reasonable one if the court has any further questions on that i think limitations in this case the l g p l twelve different environmental limitations so scribbling eighty five fifteen regarding environmental limitations says or the environmental restriction false between very little and excessive resolution of the will generally require consultation with the vocational specialist so we've got that no contrails bush or that's between very little and excessive not only do we have one environmental limitation we have twelve environmental limitations regarding the combination of the effect of non exertional limitations so security rule in eighty three fifteen states even though section two zero four of the pentagon's two states that one environmental limitation would not normally significantly affect the range of work existing numerous environmental restrictions might lead to a different conclusion as might one or more severe losses of non exertional functional capacity in many cases a decision maker will need to consult a vocational resource so should the ruling eighty three twelve states that were the extent of the erosion of the occupational of base is not claire adjudicator will need need to consult a vocational expert so screwed around eighty three to twelve says the vocational expert would be necessary and complex vocational cases certainly this is a complex case the cells pretty ruling state that an ale jay at step five has a duty in his decision court has something meaningful to review what those balancing limitations are and to what extent they extend counsel he cited january eleventh two thousand and eleven treatment page seven of  season in which it feeds that the claimant could rise from a city into a standing position without difficulty does that undercut the argument that she has a difficult time balancing it doesn't because this is the l g spine  that opinion that occasionally a balance is supported in the record is supported by the physician that did the consultant exam that said she could only occasionally balance is supported by two state agency physicians who said she could only occasionally balance and alle jay in his deference decided to accept those that evidence from those medical experts and he in incorporated into his formal r f c finding thank you think you're going to like to thank both of you for the argument this morning and we will have this case is submitted miss rocha her cisco includes our social security arguments it was also called a social security day thank you very much we appreciate the arguments