apology critical and inquiry in this case is whether mr morsi evidence medical improvement on january twenty two nine hundred ninety eight by regulation the secretary may find medical improvement only if there has been a decrease in the medical severity of a claimants impairment the secretary must determine that the decrease is based on signs symptoms and laboratory findings associated with the claimants impairment only after finding medical improvement is the secretary supposed to look at the issue of employee ability in general once a clinic has been determined to be disabled there  ssion of continuing disability and the secretary has the burden of rebutting this presumption at the present level of review a determination that a claimant has medically improved and disability has ceased must be supported by substantial evidence in this particular case substantial evidence does not support the secretary's determination that benefits should be terminated there is simply not testified at the hearing he goes to his hear testimony first when the when the regulations provide that in determining if you're going to terminate benefits due to medical improvement you have to have evidence first of all of medical improvement then you look one performing work you're saying there's no medical evidence but we do have decided statement by dr morrison that evidence well i'd like to read that because it is a critical part of this record here's here's the work of what d moore and who's a psychologist by the way the psychologist participating in the care of mr morsi at a pain management treatment program which brings together health care providers from a variety of disciplines again he's a psycholog and he says i spent a good day of part of today's session talking with him about his recent neuropsychological testing that reveals significant short term mis memory problems as well as some educational deficits and also some attentional difficulties i indicated that i thought this would pose a significant barrier to many types of retraining programs and career options i tried to reassure him however that there would be a number of things that he could do we talked about doing some type of job that was fairly repetitive and that would involve him working on something that was in front of me and requiring limited memory skills this would include jobs such as some type of production work or assembly or repair work we also talked about being a custodian or security guard and he was open to both of those possibilities as well he seems reasonably open to any alternatives that are fairly light duty that's i think that's somewhat ambiguous about this i read it dr morris in the course of this treatment program and saying look we're going to today looking terrible he is he has agitated and depressed and at that time in fact they suspended mr morsi temporarily from the program because he was having psychiatric difficulties judge magistrate judge denton who initially recommended reversal of the secretary's terminations stated the l j points to no specific evidence  record of medical improvement a point of affective disorder or low back pain substantiated by changes in signs symptoms or lab findings which took place on january twenty three in one nine hundred ninety eight sufficient to support a conclusion that also no reference to human and improvement in his psychiatric condition which he would have been competent certainly to address and indeed when we look at the statement of a mere four days later he appears to be mr morris he seems to be getting worse disabled on january twenty first one nine hundred ninety eight and somehow on the twenty second he becomes under stabled although there's a presumption that it would continue what concerning me is as i look at this record i look back say january thirteen and it's this guy's not functioning anywhere close to normal and i look at the twenty and the  thing moore's talking about him in general ways we get to the twenty second we have this interesting statement about him which isn't exactly a finding go to work it's the more trying to say hey  maybe you could do life work and that's a good the we pluck out and say ok now he's ok from the eighteenth from the twenty first the twenty second he became ok but then you culmination of all these assessments of the back surgeon and the psychiatry is have considerable disagreement over the way as to how much this the psychological problem is really the main problem and how much of that is bullish inal or really based on his his psychiatric impairment you know this went back and forth the doctor treating doctor mcconnell eventually said that he there's no psychiatric problem standing in the way of  january of one nine hundred ninety eight the only real change here is that at this point you know basically he's being treated by a psychologist for rehab because his main problem was considered to be psychological bias bastard you saying ok we have to recognize that this is a psychological impairment as opposed to a conditioning condition a continuing back problem so after ignalina jetton treat him do his rehabilitation counseling has to be at the psychiatric working on him with the physical straightening of his back and dr moore was the one who was working directly with the counseling he talked to the patient and the patient said yeah i think i can do those kinds of jobs and within a few days the  s basically that it's just the the idea that there's a lot of this is relational that it could be controlled with the stain on his meds he even himself acknowledged that he could probably return to some type of work and that's why i think the i'll choose the twenty second it just happens to coincide with moore's report but he decided to that day well i think he decided to choose that date based on dr morris report things they did that day think again a few days later on the twenty ninth dr moore in the and the rehabilitation pain management rounds met again and said ok he's not with us right now because he stopped his medications but we as a group think you can do basic work activities that can involve a lot of mental gets well you know it affects the very records of well we can't require anybody to do anything like that that it can affect their eligibility for benefits if taking the medication can be shown to improve their condition such that they can work we won't ever require surgery by things like taking medications is something that can reasonably held to be volitional or not especially that's been shown as it was in this case to improve his ability to work here's something to share well a lot of rights a lot of threats and what not maybe this case but a lot of cases that's certainly a recurrent thing that many people with certain types of mental impairments don't like to lose the buzz they well that's really the bottom that there is a clear statement of that but that is part of the mix and that is part of that the records in assessing whether or not he was medically improved he l j made a decision or a finding there was medical improvement has of a certain date at certain points in time said he definitely couldn't work at other points in time said well he wants to appear disabled and we don't know if it's his personality disorder has learned helplessness or secondary gain issues but that's only you know without actually thank you first of all i would suggest that the medical record here does not show any sort of continuing pattern of improvement at best it shows the waxing and waning and that's a typical pattern when you're talking about low back and psychiatric difficulties with reference to the what's wrong with them they do know that he's had a number of concussions for instance over the course of his career the record here betrays a minimally functional individual facing substantial challenges in just meeting the most rudimentary challenges that lie present the record does not present an individual with the skills dependability work record physical and mental capacities necessary perform substantial gainful activity on a reasonably continuous  the record most certainly does not provide substantial evidence that as of june january two thousand and two nine hundred ninety eight mr morrissey's medical conditions both physical and mental had improved such that he was no longer entitled