good morning your honor i'm mark schneider i represent timothy barnaby and this social security appeal and the question here was timothy born to be able to perform light work when he was fifty years old and the evidence shows unequivocally that he had serious emergency lung surgery in july and august of two thousand and fifteen you just orient me do i understand that he is receiving social security disability benefits nothing now no he's not he's receiving s s i benefits yes which is different from social security disability because of his age that's because of age is no it was not because of age we don't actually i made a mistake i did not file the decision granting him s s i benefits with the district court when i went back and looked at the record but i believe and as of april two thousand and seventeen he didn't change is age category but for some reason they determined he was disabled on that and he's getting s s i and s s you get less benefits than social security and you don't get medicare so the issue is when he was age fifty when he had had an onset date was he able to work or when he had his surgery was he able to work but this is not a case where he aged out and got benefits because if his increased age so the issue here was he able to perform late work because of his age when he was fifty he had had a collapsed lung he had had major surgery on his lung and that was in two thousand and fifteen but during this whole period he had been diagnosed with moderate to severe d he had had problems walking he various times couldn't walk two hundred feet or fifty feet his cardiologist noted that he could not walk more than five and a either when they had lung surgery and the quote he testified to his limitations and the law is that if you have a condition that could reasonably produce the limitations he has you have to assess his credibility nobody said he couldn't work but there were there was many there were many reports about his limitations and walking and limitations and breathing that he was able to do some household chores that he used the riding mower twice a week he could make sandwiches that he went shopping these are not the kind of conditions that allow you to assume a person's not being credible he testified that he got out of breath he had a long history of working of doing hard work and of course that should be given in hand his credibility there is no reason he would want to stop working there was the judge said that he had received conservative treatment is law is major lung surgery conservative treatment he received twenty two medications for his diabetes for his anxiety for his headaches the judge said that he was able to complete a form that clearly his he could do did not seem to involve reading and why and i can i can see that but the issue is whether he was credible or not whether his condition was whether there was objective evidence of his conditions that would support his testimony he used oxygen every night the one thing that one factor the judge  on one of them was that he said he could walk three to four miles a day while he had testified he could walk three to four minutes a day throughout the record his doctors were saying you need to exercise more you need to you need to do something there was that one note that he walked three or four miles a day he never was able to walk three to four miles a day if he was able to do that he would be working that was a transcription or if it doctors why doctors doctors advise you to lose weight doctors advise they advise me to lose weight and get exercise and i don't always do that it may have been better for him but there was the bottom line is this is this is not substantial evidence you have to look at the facts from both sides you look at with that long surgery would he be able to do light work which means standing walking pushing pulling lifting six to eight hours a day as of two thousand and thirteen or at least as of the date of his lung surgery court my name is johnny santana and i represent the defendant i believe the commissioner of social security in this matter at issue in this case is whether substantial evidence supports the commissioner's decision that barnaby retained a residual functional capacity for light work with some additional limitations and whether barnaby failed to meet the four or five g standard of new evidence submitted to the district court the commissioner's decision should be affirmed for the following four  that point your honor i would actually like to point out an error in the commissioner's brief the position identified the d o t code was a typo there was the last number i was off so upon review of the record that position that the you push the button to me yes dry cleaning as actually and so that job is actually light work so all three jobs at the l g found were viable burnaby focuses on whether there was substantial evidence to support the  decision that he could perform late work but looking at the objective medical evidence his doctors consistently noted that he was doing clinically well despite his moderately severe c o p d he was regularly encouraged to exercise and  with other things yes your honor even the c e o can be combined with the other things there are still quantifiable data in the medical treatment notes showing his functional ability and so to climb a flight of stairs in his house ten times in a day his doctors noted that he was quite active he reported to his doctors and he walked three to four miles in a day and even though barnaby contests that absent compelling evidence to the contrary there is no reason to doubt that point to address that is that barnaby didn't meet a good cause to submit that to the district court but addressing that substantively even that report is not corroborated by the entirety of the medical evidence barnaby testified at the hearing in two thousand and sixteen that he could sit for two to three hours stand for two to three hours and lift one hundred and two thousand one hundred and ten pounds reviewing the opinion by dr racine submitted to the district court he opined that he could stand or walk for barnaby could never climb stairs and yet the treatment notes show that he was recommended to climb a flight of stairs at least ten times a day so even substantively that report is not supported by the evidence in the  record additionally barnaby mentions lung surgery that he had in two thousand and fifteen but we have treatment notes afterwards from november of two thousand and fifteen so three to four months later from barely reviewing or recognizing that he had this long procedure finding that he was and i quote very stable and well controlled on his medication so much so in fact that barn was rarely using some of the medication that he was prescribed for his c o p d and again we have his testimony in two thousand and sixteen now a year later after that long procedure showing that he for example shops for four to six hours in a day once a month again he can sit for two to three hours stand for two to three hours lift one hundred and two thousand one hundred and ten pounds so the evidence as a whole shows that he is capable of performing light work racine submitted to the district court to be yes yes that's right well he alleges that that is a good cause but looking at this case closely he admitted to the magistrate that this evidence could have been obtained earlier and even looking back at the administrative level the agency requested an opinion from dr racine and that when answered barnaby through his counsel affirmed that the record was complete at the hearing in fact the hearing the record was held open for an additional submit additional evidence which he did to be submitted additional evidence to the appeal council appeals council so there was ample opportunity for barnaby to submit this these records earlier he alleges that there of school records to corroborate an alleged learning disability and barnaby himself admits that he could have obtained the report earlier therefore this case is a signal from pollard where good cause was found simply because the report didn't with respect to your honor's question about the subsequent application barnaby was greg supplemental security income in april of two thousand and seventeen and that decision was dated august two thousand and seventeen but that in that case it would be april of two thousand and seventeen so you have a different alleged onset date there are also different impairments alleged this isn't much earlier rounds yes this is april two thousand and thirteen so you have different  different evidence and in accordance with four or five g the record here was closed as of the day of the administrative law judges decision therefore the fact that he was subsequently granted as a side benefit does not provide a basis to disturb the decision unless there are any further questions your honour's for the foregoing reasons we respectfully request that the court affirmed the commissioner's decision as it was   i should have submitted dr or syrians report earlier but in fact we had nurse practitioner how all those opinion limiting his walking that was submitted to the appeals council and the appeals council didn't reference it at all it just noted that it was there and didn't say how that entered into the calculus at all and they really had an obligation to look at that factor regarding his ability to walk which is for doing light work the ability to stand and walk for six hours is the real kernel here there's no evidence obligated to comment on every piece of it they're  they are supposed to consider it and they didn't consider it at all well they didn't say they consider it but if they had considered it then i think they would have reverse because that does show he had limited ability to walk but there is no evidence of any deterioration between november of two thousand and sixteen when the found he was not disabled and april two thousand and seventeen when he was found disabled i think the district court should have considered that i don't it's not determinative and the commissioner emphasizes that he was regularly found to be stable but stable this means you're not getting better or worse it doesn't mean that that you're in good condition no none of the doctors said he was exaggerating why would he testified he could lift one hundred pounds and then say he got out of breath walking your can walk more than two hundred feet that that does it makes sense that somebody would be credible and admitting something that could be held against them he was a tough guy he was a labor and he probably could lift one hundred dollars pounds i probably could once in awhile too but he said that he couldn't lift ten pounds regularly throughout the day the vocational expert here said that he could take oxygen to work and do work there is no evidence any place that any employer would allow you to take oxygen to work there employer employer allow you to bring portable oxygen to work and she said yes there is no basis for that there no so what's the basis for saying he would need to take portable oxygen to w was using oxygen every night and that's on that night i mean to work or but if he had to work he was also testifying he didn't do much you're right that's a good question about whether he would have to he it's not just concentrated exposure and we talked about him working bag in clothes at a dry cleaner i mean is that something that you could do it could a person who can't he really is limited in any exposure to any kind of irritants or any extremes in temperature but if we use the substantial evidence test as articulated by the supreme court and by this court that you have to look at the evidence it's not just a shred or a scintilla or a touch of evidence it means looking at it from both sides in light of all the evidence of his surgeries and disability if you find he was testifying credibly then he was unable to perform light work and if he was unable to perform light work at age fifty then he was disabled thank you you're welcome you both will reserve decision