it please the court my name is greg wallace and i represent garland a lot in this social security disability appeal and let me just say that i hope you don't get tired of listening to me this morning because that would be a bad deal for the three clients that i am representing today mr lott is unable to work due to the combination of my mill retardation diaby to this extreme disk obesity and psychotic disorder now the first two issues in this appeal involve mr watts mental retardation one whether the l j should of mr lott to a psychologist for i q testing and the second which is intertwined with the first whether the property discounted the effects of mr lots of mental retardation the third issue in the case involves the ve testimony whether the properly relied on ve testimony when the  jobs requiring detailed work instructions after the hypothetical had specifically excluded jobs requiring detailed work instructions now with respect to mr  s mental retardation the ael j found at step two that mr lott suffers from the severe impairment of mild mental retardation now we have no dispute with that finding in fact dr nicholls the only mental health professional to treat or examined mr lott came to that same conclusion the l j must have based this step to finding on dr nichols  diagnosis his opinion dr nicol said that he believed that mr lott is suffering are is is functioning in the range of mild millimeter heard a shot for reasons number one he said he looked at his educational history second he looked at the nature of his prior work third he looked at his general level of adaptive functioning and fourth he considered the results of his mental status examination  when when he met with with mr watt now if mr law is suffering from mental retardation then he could meet the requirements of listening twelve o five c four intellectual disability is not our position that he does meet those requirements the twelve o five c as you well know requires additional and significant impairments here there is extreme obesity a psychotic disorder twelve o five  requires the deficit's be adaptive functioning b initially manifested before age twenty two but does not require the regulations do not require contemporaneous evidence of that there is evidence in the record that lott was in special education classes when he was in school he only completed the tenth grade he has difficulties with reading and math the only thing missing here is the are the qualifying i q scores under twelve  five so you have to excuse scores from sixty to seventy and it is our contention that the l j upon finding mr lott having the severe impairment of mild mental retardation that he should have sent him out to a consultation examiner to perform i q testing to see if mr lott in fact does meet listing twelve o five c apparently the reason why the l j didn't do that is because that step three which is the step considering the listings the l j found that mr lott does not least the listings because of his own account of his adaptive functioning and because of his work history and now let me point out that there is an inconsistency here in the us he found a step too that he suffers from mild mental retardation he finds it step three that apparently he doesn't suffer from mild mental retardation so that that inconsistency is never resolved in the l j s opinion but he will just the proper response for this quarter remained with what type of instruction a remained with with the instructions to send mr lott out for testing or we would be pleased with a remain and simply for another l j to look at the whole issue of mr lot reflect that and they will be somewhere in that range from fifty five to seventy which would meet the the twelve o five c listening so just accepting a diagnosis of mild mental retardation does your position is that's not enough to give j information about what the i q ranges well that that's enough to tip the l j off that he he probably needed some accused course here to at least make a proper a full and fair determination of whether he does meet listening twelve o five retardation includes people with ak use of fifty five to seventy and then they go on down with moderate and in extreme mental retardation so so yes but but we can't just imply from those from that diagnosis that his i q scores would be would be within that sixty to seventy range i guess we could and that would be fine but but this court's never never mild retardation you'd still need your say and still need more you need somebody to run an i q test yes yes the this court has said that that the listing does not depend on a that you have a a valid i q score of sixty to seventy and that's why if he had found it if he had not gone back and tried to walk back in step three from what he found it set to hear it he nicholls said that he considered he considered the nature of mr lots past work which and mr watt has worked as a construction laborer short order cook menial job furniture mover all of which are are are menial jobs so there's no real indication there that that a person who is molly retarded can't perform such jobs in fact the regulations  step three assume that a person who suffers only from mild mental retardation is not does not need a listing is not automatically disabled because all of the listings dealing with mild mental retardation have something additional some additional requirement like twelve o five c has the requirement of an additional and significant impairment so the mere fact that mr lott has worked at some menial jobs in the past  dr nichols considered that and did not and in his expert opinion thought that that was more of an indication of his low intellectual functioning than something that that contradicted it is the l j found activities like well he'd gotten a college degree or you know he was a rocket scientist or he supervised people at work rather the activities that the l j cited here was well he can take care of his own personal grooming he can clean the house he can shop he can do laundry he can take a bus he can ride a bus he can use a post office now i don't know but i these are the very same activities that dr nichols thought illustrated you know that he was functioning at a lower intellectual level and the l j provided no evidence that a person who is mouth retarded can walk into a post office and buy stamps or mail a letter or take you know take a shower or are by a bus ticket and take the bus attending church playing basketball with friends these are activities that the mildly retarded certainly can perform and i would be interested you know and in whether the government has any add ons that that the mildly retarded cannot perform these kinds of activities because these are the very rudimentary activities of daily living that the l j relied on to say that mr lots not mentally retarded and how dr nicholls came to the exact opposite conclusion and he's the only mental health professional to treat or examined mr lott in the record there is no contrary medical evidence from other treating or examining doctors and it's our contention that the jays  judicial authority indicating that these kinds of activities do not in fact show that a person is not mildly retarded now the last issue in the case here it has to do with the vocational expert testimony detailed work instructions and the two jobs that the that the i mean that the viet dinh of fide both require are the ability to understand remember and follow detailed work instructions  now know the government's relying on the more versus astra case but in that case simply holds that when an l j limits a person generally to simple work the simple work can include detailed work instructions but in this particular case here the l j specifically excluded detailed work instructions and so in that case i think it takes it out of the more vs ass true case and it creates a conflict  inconsistency between the finding at step two that the mr lott had a severe mental mild mental retardation and that that somehow inconsistent with finding at step three that he doesn't meet the listing step two it's a de minimis standard it just means that in a person's impairment more than minimally interferes with their ability to do basic work activity so even though they found that mr lott smiled mental retardation was a severe impairment step two that doesn't mean that it's it meets the criteria at twelve o five c for mental retardation and i would just also point out that the commissioner now uses the term intellectual disability instead of mental retardation but because the record refers to that term i will use that term as well and with respect to remaining this case for i q scores there really wouldn't be any benefit for that because in this case in order to m twelve of five c there are three requirements the first is known as the introductory paragraph criteria which requires significantly sub average intellectual functioning and deficits in adaptive functioning prior to age twenty two that's the first requirement the second is a valid i q score between sixty and seventy and the third is a physical or other mental impairment imposing a significant work related limitation and the marish case which this court kno in my brief says that the first requirement the deficit's an adaptive function is required in order to meet twelve o five c so even if you had an i q score between sixty and seventy that does not mean that you would meet the first score he still wouldn't be able to show deficits in adaptive functioning and i can explain why there's sufficient evidence in the record that the l j doesn't need to further develop the record by obtaining i q scores can i can ask a question about the except in the diagnosis of mild mental retardation is that essentially the first two steps that you've described is that what is traditionally known as as mental retardation and then under twelve o five the the third requirement to actually get disability benefits is that how i read reading it correctly well it's really there's really three requirements that mental retardation is defined as the sub average intellectual functioning adaptive functioning prior to age twenty two and for a list in order to meet listening to all the five c you have the two other prongs which are the i q score between sixty and seventy and the physical or other mental so there's really three so is the the definition of mental retardation include an i q score so in other words when the l j accepted a diagnosis of mild mental retardation was that also accepting an i q score range presumably but in this case there are scores he was just crediting dr nichols opinion that based on dr nichols diagnosis of mild mental retardation he found that he had that that was a severe impairment but it does not mean that in the twelve of five c and i'm sorry if i keep asking the question in the same and a different way but to get a diagnosis for mild mental retardation do you have to have an i q estimate usually yes but in this case isn't that something that the should have developed i mean it's the government's burden to develop the record and reach the they all jay must have accepted there was mildly mental reason retardation so why and then look at the record and say wait a minute i don't have an i q test maybe i should get one well in this case the day was looking at the deficit in adaptive functioning which is a requirement of twelve o five c and i'd like to point out that although mr lott is relying on the report of dr nichols the consultative examiner there's there's two important things about that report he found even with the diagnosis of mental retardation he limited mr lott to simple work he still found he could do simple work and in dr nichols report he found evidence of symptom exaggeration and he noted that mr lott gave minimal effort on testing which indicates that mr lott may be capable of even greater ability than mental retardation what it whatever i q level was and that's some evidence of that it was curly not not in this case your honor because he was only in special education in two classes in math and science and even says he had trouble reading he was not in special ed in reading or english and in addition the noted that mr lott was able to work for most of his adult life and he wasn't in necessarily menial jobs as professor wallace notes he worked as a short order cook on two different occasions which is semi skilled work and has a reasoning level of three which is at a higher reasoning level than the jobs a l j found that mr lot could and he he not only he after he filed his application for disability benefits he returned to work as a short order cook from february two thousand and eleven to december two thousand and eleven and testified that he stopped working as a short order cook for unrelated reasons did to his mental impairment and he also testified that his employer didn't have to make any special accommodation for him in order to be able to do that job and he wasn't  issue that he was terminated because he couldn't follow the rules that wasn't in two thousand and nine he testified that he it was his diabetes that when he said he wasn't following policies in two thousand and eleven that was why he stopped working as a short order cook in two thousand and nine he said he stopped working because of his impairment but he indicated that the main reason why it wasn't working was because of his diabetes and he testified to that at that at the hearing the other thing i would point out is the daily activities indicated that he had very rudimentary activities and in mr lots of adult function report he described doing a variety of activities cooking cleaning taking care of  he was able to monitor his own blood sugar give himself insulin he testified in his adult function report he indicated that when he was physically able to he coached a little league team and he his sister in law completed an adult function report and she indicated that he was also capable of these activities so so based on these activities the ael jay found that he did not have the deficits in adaptive functioning necessary to meet twelve o five c and with respect to the special education as the district court noted simply being in special education in and of itself doesn't indicate that a person has deficits in adaptive functioning have dyslexia and be in special education and still not have deficits in adaptive functioning and that's really what professor wallace is relying on is the fact that dr nicholls diagnosed him with mild mental retardation and and mr lott was in special education but dr nicholls opinion is somewhat qualified because he found symptom exaggeration and minimal effort on testing so this court noted in marriage that you can consider a person's ability to work when considering whether or not they me whether or not they have deficits and adaptive functioning and with respect to the to the second issue the whether or not there was a conflict between the ve and the d o t dictionary titles it is important to note that the l j did find that mr lott was limited to simple not detailed or complex instructions but the identified jobs with the reasoning level of two which is defined as the ability to carry out detailed but on involved instructions and in the more case this court noted that there was no direct conflict between somebody who who say able to perform simple work and somebody who could do jobs with a reason a level of two and in this case based on mr lots of work history at a reason level of three short order cook job he would be able to perform the jobs  silver wrapper and marker which have a reasoning level of two those were the two jobs at the ve identified at the hearing so in the jones case in this court noted that somebody who has the ability to do past work  based on a persons of the past work they would be able to perform jobs with a similar reasoning level or in this case he had an even greater reason level based on his two different stints working as a short order cook which has a reason a level of three which is higher reasoning level between the finding severe mental or mental retardation but it's not at listing level criteria and there was no conflict between the the east testimony and the d o t based on the more cases and even if this court were to find that there was a conflict in this case based on mr lots ability to work as a short order cook in the past supports the finding that he would be able to perform jobs with the reason the level of two because it's at a at a lower exertional level are there any other questions i guess not thank you thank you for your time at level three militate against him being disabled yes the short order cook is a low skilled job it has the specific vocational preparation as  plus reasoning level three as this court is fond of saying in many cases the d o t requirements represent the maximums and without any kind of information about what type of short order cook this again is not rocket science short order cook in the situation in which he worked could have required a lot less type of racing so it's not that every short that he automatically performed his short or cook at reasoning level three that's the maximum under the under the d o t but does not necessarily mean it was the it was the level at which he performed it in the past as this ation that diagnose that diagnosis assumes significant sub average intellectual function and you can't have one without the other thank you thank you both for your arguments both written and oral form and we will take it under advisement and