Morning, Your Honours and we have the angelo, attorney with the Legal Aid Society of San Diego. Appearing on behalf of the appellant, Joe Martinez. This matter is an appeal from the Commissioner Social Security's denial of Mr. Martinez claims for Social Security disability insurance and SSI benefits. As this is an appeal from administrative ruling, the matter is taken to NOVO and such are appeal stems from the decision of the ALJ in this matter. The ALJ made a number of errors in analyzing and applying the appropriate legal standards to the testimony, medical records, and expert opinion evidence presented to him in this case. As a result of those failings to follow and apply the proper analysis, we have a decision that's not justified with substantial evidence or not supported by substantial evidence. This hearing took place in July of 2010. Mr. Martinez was the only witness to testify. He gave testimony regarding the pain and limitations he suffers from his diabetes, condition, as well as obesity, the foot and ankle ailments, testifying basically to his limitations ability to walk, lift, bend, crouch, to perform a number of work type activities. The ALJ decision is basically completely silent on Mr. Martinez' testimony. There is no analysis that any answer to any question he gave that the ALJ asked. There is no discussion of any part of his testimony. When a claimant provides subjective testimony regarding, provides testimony regarding subjective pain and limitations evidence, the ALJ is required so long as that test, those complaints are reasonably tied to a medically determinable impairment. The ALJ is required to conduct a credibility analysis. And through that credibility analysis, generally show clear and convincing reasons for rejecting that claimant testimony. There is no credibility analysis here. The ALJ failed to perform what he was supposed to do with regards to Mr. Martinez' testimony and that was error under the credit. It is true doctrine when claimant testimony is rejected. The reviewing court should view that testimony as true, particularly when it comes to the issue of remanding or reversing the case
. I failed to mention I wanted to reserve five minutes of my time for repuddle. Thank you. In addition to ignoring the claimant's testimony, the ALJ also ignored menopause. I mentioned you were reserving five minutes for a repuddle. Were you? Have my attendants already? No, no, no. I thought you were finished. I thought you were finished. No, I meant to say that my wife had forgot your eye upon you. We have a number of questions for the government. You might actually want to reserve the rest of your time to see what we can. I will take a seat. Thank you. Good morning, Your Honours. I see a moody on behalf of the Colvin Acting Commissioner for Social Security. I think the State's substantial evidence supported the ALJ's determination, in this case, that claimant was not disabled. How was the substantial evidence as to the non-exertional limitations? And how did that, how was the grids applied to that non-exertional limitation? In this case, the grids were not applicable because the non-exertional limitations were not applicable. I'm sorry, I'm sorry. The grids are not applicable. No, you're quite right. They were not applicable. I agree. I agree
. It was a fluidian slip, but it was a no-way in my sense. We never penalized the council as blew it out to truth. No, no, that was my, that was my evil twin there. Tell me why the grids are applicable if the grids don't consider non-exertional limitations. And the grids were applied without a vocal, without a rehabilitation expert. Well, the grids were applicable. Okay. In this case. And so I apologize for that misstatement. Grids were applicable in this case because the non-exertional limitations that were, for example, contained in the opinion of the State Agency reviewing position, the limitations on balancing, on climbing bars, ramps, and scaffolds, they don't erode the, the sedentary occupational base. They don't significantly erode a sedentary occupational base. There are two non-exertional limitations, which even Dr. Brotsky agreed to. Number one, that Martinis lacked balance. Number two, that Martinis, because of his diabetic condition, had to take frequent restroom breaks, breaks when appropriate. Those are two non-exertional limitations. Now, if those go to the ability to do sedentary work, and the grids don't take those into consideration, then the ALJ's use of the grids seemed to me to be an error. Well, Dr. Brotsky didn't find any limitations with regard to the claimant's ability to use the necessary, his necessity to use the right. No, no, no, no, take a look at Dr. Brotsky's report. He found that he could not stoop, and he could not, he had bad balance
. He checked off the box, never, never. So now, you can't very well say that Brotsky didn't find those two non-exertional limitations. You may agree around common ground, that non-exertional limitations are not mentioned in the grid. Right? Are we? Non-exertional limitations don't preclude the application of the grids, and in this case, put it the other way around. The grids do not take into consideration non-exertional limitations when they come to the issue as to whether the person can do the sedentary work. True? Yes. So therefore, if there are non-exertional limitations, you have to call a vocational rehabilitation expert to say why these non-exertional limitations do not limit this person's ability to do sedentary work available in the national economy. That is not the case here. Under, under, under Hoopai, my, my right recitation part of me for being so long-winded as the law is in error. So therefore, you're getting, tell me with how it's an error. Good? Yes. Now, what is the case? Under Hoopai, the astro, when the non-exertional limitations do not significantly row, the acclaim and stability perform a full range of sedentary work. The non-exertional limitations then do not preclude the application of the grids. And in this case, the non-exertional limitations that Dr. Braski found do not preclude the application of the grids. Is that case cited in your brief? It is cited in our brief. Tell me where? It is cited at, it is in the final section, it is cited at, it starts the argument begins at page 41 in our answering brief and continues to be in the final section. To page 45. And in our brief, we cite, we do cite to Hoopai for the point that non-exertional limitations, they are not sufficiently severe as the significantly limited range of work permitted by the claimants of exertional limitations. Those non-exertional limitations do not preclude the application of the grids. And that is why the grids were properly applied in this case. As you mentioned, Dr
. Braski, for example, found claimant limited in his ability to balance, but on the agency's Social Security Rulings, specifically Social Security Ruling 96-9P, a prohibition on balancing does not significantly road a claimant's occupational base. Because balancing as to find the agency's rulings contemplate a inability to maintain your equilibrium on a narrow or a slippery or, I think, the word is erratic, erratic-moving surface, which, instead of Terry work, you're not exposed to those kind of environments. And so that is why, and similarly, crouching, that is not something that significantly road a claimant. Let me ask you a question, just along those lines. The gentleman here was examined by Dr. Novak. Yes. He was an examining physician. And that doctor found that Martinez could stand or walk for less than two hours, could sit for less than six hours, could carry or lift less than 10 pounds occasionally. All right. So he's the examining physician. Then we get Dr. Braski. Now, Dr. Braski was not an examining physician, right? And now, the ALGA gives specific and legitimate reasons why he rejected Dr. Novak's assessment at being the examining physician. And instead, he simply relied on Braski, an on examining physician. And he was not supposed to do it that way. So why do we, why do we worry about Dr. Braski? Well, I mean, did he give those reasons? Those reasons are present, and I should note first that both- Well, did he give them? Well, birth's circuit present and the- No, did he give them? I'm just asking you a question. Yes. Yes
. Well, the ALGA provided those reasons for why Dr. Braski's opinion, contributed the opinion of Dr. Novak. Dr. Braski specifically specifically noted that Dr. Novak's opinion, for example, was not consistent with her own examination findings. Dr. Novak assessed limitations on claiming the ability to lift, but claimant during the examination had full strength and normal range of motion in his upper extremities. Dr. Novak, let me ask you this. When- When this gentleman was at Tri-Cities, and the conclusion there was the diabetes was poorly controlled at baseline, and they were treating him, right? And did the ALGA mention that Martinez's diabetes is poorly controlled at baseline when he rejected what the Tri-City diagnosis was? Well, the ALGA's decision notes that- Yeah. That claimant's- claimant's diabetes was poorly controlled, but the ALGA's decision notes the claimant- Well, the ALGA says that- His decision said that he was non-compliant with the medications. Now, the- That isn't in Tri-Cities report, is it? It's just said it's poorly controlled at baseline. Well, throughout the- Throughout the- He mistated that. The ALGA- Tri-Cities- But elsewhere in the record, it notes that claimant's diabetes- Well, you're supposed to go through each one of these. We didn't do that. The ALGA didn't specify the particular Tri-Cities report, but the ALGA's decision notes- Sites the longitudinal medical record to note that first claimant was non-compliant with prescribed treatment, and that when claimant was compliant with prescribed treatment, his condition improved. For example, he presented to- for treatment in September 2008, which complaints related to his- What do you look in that now? Excuse me? What do you look in that now? This is- Well, in the excerpts of record, this is page 434. And there's a- There's a visit where claimant visits the emergency room with complaints related to his diabetes. And upon discharge, it's note that- It's first note that he's asymptomatic, and that his symptoms resolve with treatment. And- But he talked- He talked- He talked to the fact- Let me ask you another question. He was at Scripps Hospital, right? He had a diabetic ulcer, and- And the neuropathy
. His blood sugar was at sub-optimal level after a week of inpatient treatment. And- And- And the ALJ, in his opinions, did not say anything about Martinez's blood sugars, that they were sub-optimal, even after a week of inpatient treatment. He didn't even address that. He just didn't touch it, huh? And then, when Dr. Shohei found that- That Mr. Martinez had decreased muscle strength at his lower legs, weakness in his planter musculature, planter atrophy, prominent bone mass on foot, vertigo, fallen arches. He was a treating physician, and- And then, scope orthodontics, orthothotics, excuse me, said that he- This is another treating physician. Only- He only had limited ability to walk without an assistive device. He'd only walk a quarter of a mile with an assistive device. And- The ALJ didn't discuss Dr. Shohei's, or- Or scopes, diagnosis, at all, even though they were treating doctors or medical providers. He just brushed his side. And Martinez said, testified that he is in pain all the time, takes him 15 minutes to walk the block, he uses the cane, he's homeless, his feet get swollen, he must elevate them for three hours a day. The ALJ didn't make any credibility finding before dismissing Martinez's testimony. And the ALJ failed to consult a vocational expert. There was no vocational expert here, right? No. It wasn't any. Before finding substantial jobs in the national economy. So, you didn't do a very thorough job, did he? Well, I think the ALJ's decision, going in order there, starting with the treating physicians' evidence. The ALJ specifically notes that- That no treating physician, notably found claimant unable to work. Dr. Shohei, for example, the treating podiatrist, Dr
. Shohei didn't observe any marked limitations claimant's ability to walk. Nor did Dr. Shohei impose any limitations on claimant's ability to walk. Dr. Shohei, instead, recommended diabetic foot care, counseling and a shoe recommendation. So, that's a treatment recommendation that's not consistent with the finding of disability. It's literally a great- I'm sorry. Man, the rush of your second, I took note when you were telling me that about what the ALJ found based on Dr. Brotsky's and Dr. Novak's, and well, Dr. Novak's findings. And you said that the petitioner had full range of motion and full strength, right? In Dr. Novak's, he had no- I've been looking at Dr. Novak's record here, and I haven't found any finding that he had full strength. As a matter of fact, he did test his right grip strength and his left grip strength and his right hand, which was dominant, was less than his left hand. Can you tell me where in Dr. Novak's report, there's any finding as to full strength, which is what you said? Sure. Because that would be very important as to whether he could do sedentary work. Thank you. On page 393, I was certified of the rather the supplemental excerpts of record that, that, that, that, uh, probably submitted on starting with the upper extremities. First of all, notes that the range of motion was grossly normal, bilaterally, in the upper extremities, and going down the page to neurologic findings, this is motor, good tone bilaterally, good active motion, strength is 5-5 in all extremities. I see
. Thank you. Thank you very much. And then returning to, uh, I, I was in a discussion about the treating physicians. But the ALJ that consult a vocational expert before finding substantial jobs in the national economy. As I, as I mentioned earlier, a vocational expert was not necessary because the grades were applicable in this case, non-insertial limitations that, even, that, that even Dr. Brossie found did not preclude claim of performing a full range sedentary work. The posterior limitations are not, do not preclude a claimant from performing sedentary work. Limitations on balancing, as I discussed earlier, on the ABC's own rulings, specifically 969P, those restrictions do not preclude the application of the grids in this case. Hence, the ALJ properly found using the grids that claimant could perform work in significant numbers in national economy. Well, that's what Dr. Browski says, right? Yeah, relying on, I mean, the agency, yes. The hesapigian was based on Dr. Novak's examination. He also had the benefit of continuing other records. Dr. Novak, the views were to the contrary. Well, Dr. Browski did have the benefit of reviewing other evidence of records, specifically Dr. Browski. Yeah, he's just, Dr. Browski, he's looking, he's looking at pieces of paper. He never examined this person, never examined Martinez, did he? No, Dr
. Browski did not examine the paper. Can I ask you the name of the doctor, others in Novak upon whom Dr. Browski relied? Well, Dr. Browski, in his examination in his report, he notes that he reviewed records from claimant's period of incarceration. And so it's the totality of his medical records when he was in jail. And those records, for example, claimant notes on his intake to jail that he denied any limitations in mobility, and denied any limitations in his vision, his diabetes, and as well, an ex-retake in near the end of the case, claimant's period of incarceration found that a fracture in his right foot had healed. And so that was evidence that Dr. Browski relied upon in addition to Dr. Novak's examination. When was the petitioner released from jail? I do not know the specific date in which petitioner was released from jail. I mean, he was in jail intake records. Are they dated? Yes, they begin. I think his intake was December 2007. The records, I believe, end in January 2008. That was about eight months before Dr. Novak's September 2008 examination. Yes. If we determine that there was error here, can you address whether we should invoke the credit as true doctor or simply remand for a re-determination? Well, under Garrison, credit is true for payment would be inappropriate because serious doubt exists as the claimant's actual existence of disability in this case. And the evidence they cited creates that serious doubt starting with objective medical findings throughout the relevant and judicary period that show claimant had normal neurological function. So, I would say, wait a minute, sir. Answer Judge Thomas' question. If you lose
. Right? Yes. What do we do? Well, remand would be appropriate because of the remand for further prehistory of proceedings. For those four years only because now he's got disability. Yes. It would be for that period because obviously since he turned, he attained the age of 50, his status is different, but it would be for the period I assume, the company of the agency. Why should we do that? Because he's already getting his disability. Yeah, not how long after he was turned down. Well, he became eligible for disability benefits based on the RFC that the ALJ found. The ALJ, as a stated, found that he was able to do a full-rated centering work. Under the grid rules, once the claimant attained the age of 50 and has a centenary RFC, they're disabled under the grids. He had not attained the age of 50 during the judicary period that is at issue here. Once he got his benefits, he reapplied after he had turned 50. And the grant was based on his attainment of the age of 50. It's not related to the medical evidence here. So he actually was able to use the ALJ's determination that is now before us, coupled with the fact that he'd now turned 50 in order to qualify for the grant. Indeed. Indeed, the RFC, the ALJ, found benefited his subsequent application. Okay. So I think we had to send it back and have a go through the whole thing. When we had an ALJ that didn't do his job. I would initially submit first the ALJ's decision was supported by substantial evidence based on the objective medical evidence and the analysis of claim's credibility. But if you were to find otherwise, then remand for further administrative proceedings would be appropriate in this case. Yes. Thank you. Thank you. Okay. Well, what do you think would be the appropriate remand? I think I don't think remand is appropriate. I think reversal is appropriate. Under credit is true. Speak a little louder. I'm sorry. Under credit is true if the ALJ has improperly rejected claimant testimony or expert opinion, the court should credit that as true. In the decision, the ALJ says that Dr. Novak's opinion would typically result in a finding of disability. If this court finds that Dr. Novak's opinion was insufficiently or improperly rejected, she credit as true. And thereby the ALJ's own reasoning, this case should be reversed. You should have been found disabled, not able to perform sedentary work. Council. Yes. I'm bothered by your position that the ALJ didn't say specific legitimate grounds. The ALJ was not disabled. He relied on findings in Dr. Novak's report
. Yes. Thank you. Thank you. Okay. Well, what do you think would be the appropriate remand? I think I don't think remand is appropriate. I think reversal is appropriate. Under credit is true. Speak a little louder. I'm sorry. Under credit is true if the ALJ has improperly rejected claimant testimony or expert opinion, the court should credit that as true. In the decision, the ALJ says that Dr. Novak's opinion would typically result in a finding of disability. If this court finds that Dr. Novak's opinion was insufficiently or improperly rejected, she credit as true. And thereby the ALJ's own reasoning, this case should be reversed. You should have been found disabled, not able to perform sedentary work. Council. Yes. I'm bothered by your position that the ALJ didn't say specific legitimate grounds. The ALJ was not disabled. He relied on findings in Dr. Novak's report. The ALJ said Dr. Broski relied on Novak, right? Well, the ALJ references a broad ski to reject Novak without much particularity. Let me ask you the question I had in mind. We often have incorporation by reference. Dr. Daukchun, we all lawyers use, right? Is it your position that the ALJ should say anything more than Broski was justified in relying on Novak's findings in disagreeing with him? Does he have to say Novak's finding as to this, as to that, as to the other? Does he have to repeat all of Novak's findings or is a reference to Novak's findings sufficient under the law? So I think it's somewhere between not an exhaustive recounting of Dr. Broski's findings. But there's got to be something more than what he did here enough to show specific and legitimate reasons. Well, the specific, if he says all the specific and legitimate reasons are in Novak's report, right? Does he have to say which says and then repeat Novak's report? I think specificity would require that you can't just reference a 11-page report and say based on, I mean, there should be something pulled out of it so that the claim that he knows. Do you have a case that says the ALJ cannot incorporate by reference to findings of an examining physician, but must repeat those salient findings and let us know what he thought was important and what was not important? Well, I think this case is a bit different, Your Honor. The ALJ is rejecting the examining physician in favor of using the... The ALJ is not rejecting the examining physician's findings as evaluated by Dr. Broski. Here's what we've got. We've got Dr. Novak, the one that you like, saying that the petitioner has full range of body motions except at his ankle, that he has five slash five body strength. That he can walk unassisted, that is without a cane, but slowly, right? That he has full pushability with the upper extremities, but not with his legs. Now, based on just those three or four things that I've mentioned, why can't this ALJ find that under the grids, this petitioner can be a parking lot attendant? Well, those findings, and I believe you're reading from Dr. Broski's.
. The ALJ said Dr. Broski relied on Novak, right? Well, the ALJ references a broad ski to reject Novak without much particularity. Let me ask you the question I had in mind. We often have incorporation by reference. Dr. Daukchun, we all lawyers use, right? Is it your position that the ALJ should say anything more than Broski was justified in relying on Novak's findings in disagreeing with him? Does he have to say Novak's finding as to this, as to that, as to the other? Does he have to repeat all of Novak's findings or is a reference to Novak's findings sufficient under the law? So I think it's somewhere between not an exhaustive recounting of Dr. Broski's findings. But there's got to be something more than what he did here enough to show specific and legitimate reasons. Well, the specific, if he says all the specific and legitimate reasons are in Novak's report, right? Does he have to say which says and then repeat Novak's report? I think specificity would require that you can't just reference a 11-page report and say based on, I mean, there should be something pulled out of it so that the claim that he knows. Do you have a case that says the ALJ cannot incorporate by reference to findings of an examining physician, but must repeat those salient findings and let us know what he thought was important and what was not important? Well, I think this case is a bit different, Your Honor. The ALJ is rejecting the examining physician in favor of using the... The ALJ is not rejecting the examining physician's findings as evaluated by Dr. Broski. Here's what we've got. We've got Dr. Novak, the one that you like, saying that the petitioner has full range of body motions except at his ankle, that he has five slash five body strength. That he can walk unassisted, that is without a cane, but slowly, right? That he has full pushability with the upper extremities, but not with his legs. Now, based on just those three or four things that I've mentioned, why can't this ALJ find that under the grids, this petitioner can be a parking lot attendant? Well, those findings, and I believe you're reading from Dr. Broski's... No, no, I'm reading it now. Those are all my findings. I've taken notes on Dr. Novak. Well, there are additional findings that Dr. Novak's report that have been... that painted what brought her picture, a larger picture. Well, but those are not the findings that Broski relied upon. And can Broski rely on some findings of Novak, which show that this man is able to do sedentary work, and not rely on others, or must he take Novak 100 percent? Being a non-examining physician, he has the law says that his opinion sits in a lower rung than... I'm not talking about his opinion. I'm talking about findings. Well, did I talk about Dr. Novak's findings that we're not discussing? Those are the ones I just... Full range of motion, full strength, able to walk without a cane and has push and pull abilities and his upper extremities. He can't be a parking attendant? No, that's a mischaracteriation of Dr
.. No, no, I'm reading it now. Those are all my findings. I've taken notes on Dr. Novak. Well, there are additional findings that Dr. Novak's report that have been... that painted what brought her picture, a larger picture. Well, but those are not the findings that Broski relied upon. And can Broski rely on some findings of Novak, which show that this man is able to do sedentary work, and not rely on others, or must he take Novak 100 percent? Being a non-examining physician, he has the law says that his opinion sits in a lower rung than... I'm not talking about his opinion. I'm talking about findings. Well, did I talk about Dr. Novak's findings that we're not discussing? Those are the ones I just... Full range of motion, full strength, able to walk without a cane and has push and pull abilities and his upper extremities. He can't be a parking attendant? No, that's a mischaracteriation of Dr. Novak's findings. She said he could walk across the examination room slowly on the lateral edges of his feet, that he could not stand on heels or toes, that he could not perform tandem gate. Tantum gate is taking normal steps. That summary that we're talking about now, and I do believe that's the one that Dr. Broski used, is just not an accurate representation of Dr. Novak's observation. She also tested his reflexes, his pedal pulses, and those were all deficient. So, Dr. Novak saw this... she saw his body habit. She explored his edema. She looked at his X-ray. At his X-ray, she observed him move about the room, and it was her determination that he could not walk enough or have the strength enough to perform sentry work. Dr. Broski's review of that is really... Well, that's..
. Novak's findings. She said he could walk across the examination room slowly on the lateral edges of his feet, that he could not stand on heels or toes, that he could not perform tandem gate. Tantum gate is taking normal steps. That summary that we're talking about now, and I do believe that's the one that Dr. Broski used, is just not an accurate representation of Dr. Novak's observation. She also tested his reflexes, his pedal pulses, and those were all deficient. So, Dr. Novak saw this... she saw his body habit. She explored his edema. She looked at his X-ray. At his X-ray, she observed him move about the room, and it was her determination that he could not walk enough or have the strength enough to perform sentry work. Dr. Broski's review of that is really... Well, that's... there's a big difference between examining the patient, coming up with a report, coming to a conclusion, and then having a third party, another doctor who's never seen the patient just looks at the paper, and comes to an exactly opposite conclusion. And it's the examining physician who is to be credited, not the non-examining. And the regulation for the patient. You know, there are situations where one judge can put down all the facts, come to a certain conclusion. Another judge can come along and just copy everything that was done, come to another conclusion. Yes, and I think that's what happened here with Dr. Broski, you're on her arm. He did his report, I think, within a week or two of Dr. Novak's. And so, as a review physician, his review of the medical records, as far from complete, there's over 100 pages that came in the evidence after the date of his review, including the podiatrist specialist records, including the orthotics records, and continuing, you know, other records from the treatment. So, Dr. Broski's review is just inherently flawed, the regulations. Let me ask you a question about that. Can I direct your attention to ER394, which is Dr. Novak's report on her functional assessment of Mr. Martinez? And then I'd like you to compare that with ER406, which is Dr. Broski's report, in which he discusses Dr. Novak's findings from the functional assessment, and notes that there are no inconsistencies within or between the reports and allegations. And just so you understand where I'm coming from, I don't see anything in the three paragraphs on Dr. Novak's functional assessment at page 394, that undermines Dr. Novak's conclusion that Mr. Martinez is prepared for a sedentary, whatever residual functional capacity performance level
. there's a big difference between examining the patient, coming up with a report, coming to a conclusion, and then having a third party, another doctor who's never seen the patient just looks at the paper, and comes to an exactly opposite conclusion. And it's the examining physician who is to be credited, not the non-examining. And the regulation for the patient. You know, there are situations where one judge can put down all the facts, come to a certain conclusion. Another judge can come along and just copy everything that was done, come to another conclusion. Yes, and I think that's what happened here with Dr. Broski, you're on her arm. He did his report, I think, within a week or two of Dr. Novak's. And so, as a review physician, his review of the medical records, as far from complete, there's over 100 pages that came in the evidence after the date of his review, including the podiatrist specialist records, including the orthotics records, and continuing, you know, other records from the treatment. So, Dr. Broski's review is just inherently flawed, the regulations. Let me ask you a question about that. Can I direct your attention to ER394, which is Dr. Novak's report on her functional assessment of Mr. Martinez? And then I'd like you to compare that with ER406, which is Dr. Broski's report, in which he discusses Dr. Novak's findings from the functional assessment, and notes that there are no inconsistencies within or between the reports and allegations. And just so you understand where I'm coming from, I don't see anything in the three paragraphs on Dr. Novak's functional assessment at page 394, that undermines Dr. Novak's conclusion that Mr. Martinez is prepared for a sedentary, whatever residual functional capacity performance level. Where are you looking at? I think you meant Dr. Broski. Broski, here's the functional assessment. You understand my question? So we're looking at, and I apologize, and I have our excerpts of record and ask different pages. Okay, it's page 6 of Dr. Novak's typewritten report, and it's under the subheading of functional assessment, and there's three paragraphs there that summarizes her examination findings. Okay. And what in her findings supports what in her office? What's inconsistent in her functional assessment with Dr. Broski's conclusion at page 406 of his report that Mr. Martinez is still capable of sedentary, residual functional capacity performance? Well, and if you'll note on 406, he references Dr. Novak's report and summarizes at the top of page 406 in about three sentences. The conclusions that she lays out under the functional assessment at 394. Well, I would speak to what's consistent about Dr. Broski's, I guess, some of the paragraph, there are questions and recommendations where he finds that I think there's just a number of errors in here. Council, you're not answering my question. I'm giving you a very specific question. I'm asking you to look at the three paragraphs in Dr. Novak's functional assessment report, which is then incorporated or referenced in Dr. Broski's report at page 406, and asking you to tell me what's inconsistent between the findings from Dr. Novak's report, which Dr. Broski cites at page 406, and then concludes results in a sedentary, residual functional capacity determination. Dr
. Where are you looking at? I think you meant Dr. Broski. Broski, here's the functional assessment. You understand my question? So we're looking at, and I apologize, and I have our excerpts of record and ask different pages. Okay, it's page 6 of Dr. Novak's typewritten report, and it's under the subheading of functional assessment, and there's three paragraphs there that summarizes her examination findings. Okay. And what in her findings supports what in her office? What's inconsistent in her functional assessment with Dr. Broski's conclusion at page 406 of his report that Mr. Martinez is still capable of sedentary, residual functional capacity performance? Well, and if you'll note on 406, he references Dr. Novak's report and summarizes at the top of page 406 in about three sentences. The conclusions that she lays out under the functional assessment at 394. Well, I would speak to what's consistent about Dr. Broski's, I guess, some of the paragraph, there are questions and recommendations where he finds that I think there's just a number of errors in here. Council, you're not answering my question. I'm giving you a very specific question. I'm asking you to look at the three paragraphs in Dr. Novak's functional assessment report, which is then incorporated or referenced in Dr. Broski's report at page 406, and asking you to tell me what's inconsistent between the findings from Dr. Novak's report, which Dr. Broski cites at page 406, and then concludes results in a sedentary, residual functional capacity determination. Dr. Novak assesses that he needs an assistive device for undulation, which she acknowledges in paragraph two on page 394. So that's consistent, is it not? Okay, so. I mean, I don't, maybe I'm not understanding the question. I know there are the answer to my question is there are no inconsistencies. That Dr. Broski is relying on Dr. Novak's functional assessment in concluding that he's at least capable of doing a sedentary, residual functional capacity. Yeah, I agree. He hasn't reviewed anything else from by his notes. What was Broski's, what was Dr. Novak's conclusion? Was that Mr. Marchness was unable to perform even sedentary work so that he had limitations his ability to emulate, as well as lift, which so sedentary work is generally ability to walk for two hours of an hour a day and perform lifting, I think of a 10 pounds frequently and occasionally. So, Dr. Broski is looking at the same written findings, becomes so different, concluding. That's correct. Yeah, but when the, when the, when the ALJ is evaluating the examining physician over the reporting physician, what are the rules required? Well, the rules prevails. Ordinarily, the examining physician can, prevails unless the ALJ can show specific and legitimate reasons for, for rejecting that opinion. And his reasons are basically just the opinion of Dr. Broski, which I believe under, as we cite under Fritz, is not, is not legally recognized as a sufficient reason. But, did, did anything, does that occur here? Excuse me? What's the repeat, which is said? From my reading of the ALJ decision, his only stated reasons for rejecting Dr. Novak's opinion are the opinions of Dr. Broski
. Novak assesses that he needs an assistive device for undulation, which she acknowledges in paragraph two on page 394. So that's consistent, is it not? Okay, so. I mean, I don't, maybe I'm not understanding the question. I know there are the answer to my question is there are no inconsistencies. That Dr. Broski is relying on Dr. Novak's functional assessment in concluding that he's at least capable of doing a sedentary, residual functional capacity. Yeah, I agree. He hasn't reviewed anything else from by his notes. What was Broski's, what was Dr. Novak's conclusion? Was that Mr. Marchness was unable to perform even sedentary work so that he had limitations his ability to emulate, as well as lift, which so sedentary work is generally ability to walk for two hours of an hour a day and perform lifting, I think of a 10 pounds frequently and occasionally. So, Dr. Broski is looking at the same written findings, becomes so different, concluding. That's correct. Yeah, but when the, when the, when the ALJ is evaluating the examining physician over the reporting physician, what are the rules required? Well, the rules prevails. Ordinarily, the examining physician can, prevails unless the ALJ can show specific and legitimate reasons for, for rejecting that opinion. And his reasons are basically just the opinion of Dr. Broski, which I believe under, as we cite under Fritz, is not, is not legally recognized as a sufficient reason. But, did, did anything, does that occur here? Excuse me? What's the repeat, which is said? From my reading of the ALJ decision, his only stated reasons for rejecting Dr. Novak's opinion are the opinions of Dr. Broski. The conclusion? The conclusion. Yeah. Okay. And that's legally, our argument is that's legally insufficient. It's not specific legitimate. And is he permitted to do that? I don't believe so, and we've briefed that out. Your honor? Well, such a rule was that, where did you give priority? Oh, I'm sorry, yes. I like his understood. What? He can do it. But he has to show specific and legitimate reasons in order to. So he can reject the examining physician's opinion. So is he done that? I, our argument is he has not shown specific legitimate reasons. He has not, yeah, argument your honor is that he has not shown specific and legitimate reasons to reject Dr. Novak's opinion. Got your position. Thank you. I did have a couple other things I wanted. You're five minutes. Oh, that's it for the long. I'm sorry. You got finished with anything else you want to say? I just wanted to note that in discussion with the Council, he was referencing the, in jail, they didn't cite a prompt as mobility, he was actually on crutches and using, wearing a cast the entire time, was incarcerated. I thought that was important to point out
. The conclusion? The conclusion. Yeah. Okay. And that's legally, our argument is that's legally insufficient. It's not specific legitimate. And is he permitted to do that? I don't believe so, and we've briefed that out. Your honor? Well, such a rule was that, where did you give priority? Oh, I'm sorry, yes. I like his understood. What? He can do it. But he has to show specific and legitimate reasons in order to. So he can reject the examining physician's opinion. So is he done that? I, our argument is he has not shown specific legitimate reasons. He has not, yeah, argument your honor is that he has not shown specific and legitimate reasons to reject Dr. Novak's opinion. Got your position. Thank you. I did have a couple other things I wanted. You're five minutes. Oh, that's it for the long. I'm sorry. You got finished with anything else you want to say? I just wanted to note that in discussion with the Council, he was referencing the, in jail, they didn't cite a prompt as mobility, he was actually on crutches and using, wearing a cast the entire time, was incarcerated. I thought that was important to point out. Say that again. Is your mumbling? I'm sorry. The entire time Mr. Martinez was incarcerated, he was, That's big slow. Your generation talks too fast. I'm sorry. Get in trouble. And the entire time Mr. Martinez was incarcerated. Slow down a little more. The entire time Mr. Martinez was incarcerated. He was in prison. He was in prison. Yeah, okay. He was using crutches and a cast for ambulation. And I wanted to clarify that. Crutches and a cast for ambulation. That's correct. And that he used, oh, I'll just leave it at that. Thank you. Say what did you say? He said, leave it at that
. Is that what you said? Yes, sir. All right. Thank you. Thank you very much. All right. Thank you