titles really some chapters two dollars sixteen cents it's a step five case so under the regulations that carry out the statute at step five there is a portion of the burden about two things today st off how the concentration persistence pays problems are unaccounted for in the residual optional capacity that is put forth by the administrative law judge and then  nd off i'm going to talk about how the compliance problems that this woman who went through special ed and barely reached s t a in her entire working career  and and and this in general her compliance problems if you've been a consideration those were indicative of inconsistent with mental health limitations themselves so i'm impairments it's not just one or two or a narrow range of things in this case this is this is a it a massive mental health case so i mean from bipolar one o c d p t s d even some of the rarer psychological conditions up here in this case also sleep problems that the variability that can assist associate the effect of that but in addition the pain and  not appear to show up significantly in the mental health and so but they're part of it and they need to be part of an entity by statute part of the combined consideration  using these or nationalisms and used real english words you're right your honor and forgive me i think the word i used the phrase i used i think it's an r f c and it's residual functional and the practice avoiding the initials what what what i'm getting at in my argument is is is a more general concept specifically one but the mail js decision here about the residual functional capacity does take sufficient account of the limits on ridges concentration pace and persistence could you address that point in particular whether the l j without repeating concentration patient persistence shook sufficient account of i guess i would really respond by giving a few examples in and all of these are in the briefing of things that were not in the residual functional capacity but showed up in treatment notes talks about a you know a therapist having written a note saying she couldn't work well in general there are pests and doctors don't just willy nilly write no sane people can't work and yes that's an issue reserved the commissioner but it's a strong evidence of stuff serious stuff going on and then also a meeting one on one help for at least periods and then that's indicative of where you know she's assigned in indicated that she needs a case management or is also consistent a and unstable mood was treated and then the treatment was it just didn't and it often didn't respond reliably to medications and then also checking things those are the obsessive portion is is included in in the judge's discussion of current situation persistence and pace or pace but there's also evidence that she needed extra explanation that's why she would need help someone with her portions of time and in general was as i talked at the beginning there was an element in which there was a variability to these things that also was not coming from the residual from and i would like to reserve my time certainly counsel mister henslee thank you your honor may i please the court i'm jay hines lee i represent the aptly in this case for starters your honors the the appropriate standard in this case of course is substantial evidence review which generally calls for deference to the administrative law judge it was at the hearing heard the testimony saw the witnesses and that sort of thing miss lothrop just biggest hurdle in this case your honour's involves her basic and ability to answer a basic question what evidence supports greater limitations in those adopted by the administrative law judge misl of the ridge is unable to direct th attention to any specific measurable evidence that would warrant greater mental limitations than those adopted by the l j and her residual functional capacity reminds me i understood the problem a little differently i titian's concentration and persistence when he was discussing step three of the analysis with the moderate limitations there and where do we see those accounted yes well your honor in developing the residual functional capacity determination they did offer a specific explanation for accommodating her severe mental impairments specifically by finding that she was limited to simple work related decisions simple instructions and tasks and then it casual interaction with supervisors and coworkers in doing this the l j specifically discussed her approach to assessing the mental residual functional capacity by acknowledging that miss lothrop had deficits and concentration persistence or pace but finding only that this rating adversely affected her ability to follow written instructions and to explain instructions to others during the hearing miss lothrop she was asked to testify to some of her or her limitations in this area and it was noted that she needed some of the questions repeated and she was in some distressed or in their ink but she did manage to answer all the questions affectively in fact asked her own questions and she did stay until the end of the hearing also there's evidence that supports the l g s residual functional capacity finding dr davidson the consultative psychologist missed a lot of the ridges long term memory was intact she was able to recall four digits forward and three backward on short term recall by limiting her your honor to simple just simple work related decisions and simple instructions and tasks we would suggest this is consistent with some of the court's other recent holdings for example in the joseph a case which we cite in our br the residual functional capacity in that case was similar to this one with simple routine repetitive tasks requiring no more than occasional contact with supervisors and coworkers and this was in conjunction with moderate limitations and concentration found that l j properly tied the residual functional capacity to the evidence by limiting him to simple routine repetitive tasks and simple work related decisions so in the absence of specific quantifiable measurable limitations that are evident in the record we would suggest that as in those cases this court should find that the ajay's residual functional capacity capacity germination was was revisions by so scared administration do make a difference in this case the agency has clarified that a moderate rating means simply that a claimants functioning in this area and dependently appropriately effectively i know that it is a fact it is effective in this case i don't have the exact effective date but it is definitely possible in this case so our argument in this case  decisions make it clear that there are no magic words that are required to accommodate a moderate concentration space rating instead an algae has to look at the evidence did look at the evidence in this case and explained how she arrived at her conclusions and the residual function of capacity determination sufficiently addressed thomas lots of ridges moderate rating and concentration persistence or pace affected her ability to stay on task and the evidentiary record just did not warrant limitations beyond those contained in the hypothetical with little to no actual objective evidence of limitations we submit that miss lothrop edge is asking that this court improperly reweigh the evidence in addition to asking the court to reweigh the evidence which presidential th circuit authority says is improper she's also asking for a categorical rule pertaining to moderate concentration persistence or pace limitations that as i've alluded to this court has previously not recognize she's also finally asking the court to consider new arguments that she failed to raise in district court which the court has said is improper so the common theme running through the decisions that we cite in this in our brief that are recent is that the court insists that analogy has to consider the evidence for a record and account for limitations that are supported by the record however at the same time these cases all provide examples of this court's refusal to apply a categorical rule in every concentration persistence or pace case  that seems to put us in the position of trying to read you he's lost a lot of these cases there's not a clear path laid out from the limitations on those tasks that someone with the claimants limitations would be unable to perform here in the absence of evidence actual again measurable evidence that miss lothrop had additional limitations that the l g simply did not consider we submit that this court should find that the l g s determination and corresponding hypothetical to the book a tional expert were appropriate for the record the burden on this is on appeal and the burden is on to show a lack of substantial evidence which the basic court in the u s supreme court has said an l j should receive great deference so and in the absence of evidence showing that the this case seems to be about the claimant's rights under the statue in the regulations implementing it to a highly individualized and responsive residual functional that's aired seven hundred and thirty six or so i don't think there's allegations that the vocational expert in this case did a medical analysis of his own so that's not at issue the recent rule change the commissioner's briefing itself some of the other arguments that that were in the briefing that were examples of of prior things i think that there's a potential se see versus change every problem there and i wanted to point out that the noncompliance ties back to the job history and decision making problems and i request that you remain and then and i thank you for your thank you mister rodman the case was taken under advisement