good morning ma'am please the court my name is a time capsule on it i am representing mark chesler in this appeal kessler was working as a journeyman grade checker in heavy construction november two thousand and seven until he had a bad accident at work one of his coworkers threw a paper tape measure to him he missed it it hit him in the face wreak accident   as a result of the fact that he was in a lot of pain for a long time his teeth were all rotten in his mouth and he couldn't afford to have them removed this case had some this is nothing  social security since before even filed his claim he had a labored industries claim which is workers compensation in washington and tried to get treatment tried to get they basically told him he needed to get all of this  but labor in industries wouldn't approve it and he couldn't afford it because he had couldn't work because he was in too much pain to work the other thing isn't big cuz of the type of work he did it was a type of job where he was not allowed to be on any types of medications pain medications they they had drug testing you could not be on that work site was too dangerous so that ruled out his ability to work at his former job and so he tried to change stepped in the state you've applied to the state applications got lost he fell through the cracks as a result it took him twenty seven months before he was finally able to get people during that time period at first he continued to work a number of odd jobs but at roughly in august of two thousand and eight he reached a point where he just couldn't work anymore and a few months later he actually four months later he finally was told advised to apply for social security disability well the problem here let's point to turn to the l g s decision the issue here is a little unusual i'm not asking the court to rule and i don't think the courts in a position to rule on whether or not mr chesler was disabled any time period that the relevant time period here and the relevant time period is between success i'm not even sure he had some short periods that were substantial gains elective eighty but the real issue is that beginning in august of two thousand and eight he had a period of about a year and a half where he was unable to perform substantial gainful activity he was able to do occasional eye jobs labor ready jobs now and then say he was unable to do it on account of the pain on account of the pain on account on account of depression the twelve continuous months of this impairment doctor was a one time evaluation and that just is a read on whether or not he was in pain that one day the actual records from this treating sources shows that the pain was ongoing for several years but he also said that he takes no routine pain medication within that have come from your client yes but that at that point could  worked i know there's a dispute about the street cutting job about when it was but it was during some at some point during this time period which sounds like fairly heavy work and he did it and there's no indication that he wasn't able to do it is that right that is correct but that was not in till about december i believe of two thousand and ten this is like this is well after  think reasonably conclude it will just take she could reasonably conclude that his disability continued through the date of her decision because he was still not working at s g a or she could reasonably conclude that shortly after the chief  more than minimum only affects your ability to perform any basic work activity good morning my name is john wants and i'm representing the acting commissioner of the social security administration mr chancellor speaking on the close period of disability in this case in this theory is that dental problems prevented him from working and once his people were polled he could work again the problem is that as the l j put it quote the claimant worked throughout the period at issue when able to find work on occasions when he worked last or was not working at all it was due to an availability of work and not due to some i'm not sure what that means exactly and whether it's available as  him well that's something to do with whether he's able to work or not and when for example it was said that there was a problem with the medication which made him money but it worked at certain jobs or if he was in very bad pain that was limited to him and the number of jobs the standard is more than minimally effective work activity as i it is that correct is that the right gender you're talking about for whether or not there is a severe impairment yes my question is whether there is a right so so the question isn't whether he it seems circular t for instance when he isn't working full time he says that he's disappointed that he doesn't have more hours the proof is in his treating therapist as a as a an assignment for his mental health therapy is to continue to work as much as possible so i think when we're talking about on availability of work i see your point in terms of well maybe it's unavailable because of his because he has side effects from medication but i think it's relatively clear in the l g s decision that when he's when she is talking about on availability she's talking about economic reasons and whether or not he can just see whether or not there's work out there he can secure and what is the evidence to support that the reason he couldn't get a job was economically think i understand this man work continually for thirty years it wasn't that he wasn't working for a long time right so he had a resume that showed that he could work right when we're talking about there being some reason he can't work that reason also needs to be tied to a medically determinable impairment and so when we're looking at so we have sort of two to impairments here one where we have some talk about depression and on the other hand the effects of pain and in terms of depression it's true that an april two thousand and eight he told his treating therapist that he was too depressed to get out of bed but at the same time it's true that he started medication and in may he reported that that medication was effective he was looking for work and one months later he had a full time job so there's no evidence that think it is clear that there is no point does he say he can't do the job because he has because of his pain or because of depression although i will sit there is one exception to that and i think the only period during the only time during the relevant period that shows mr chester's pain actually affected his ability to work was right at the time when people are polled and that was on march first two thousand and ten on march second he told ms beaker that he would call a supervisor to take a day off because of pain so that's really the complete court ordered community service and in the letter she said that mr chester was unable to do that community service because his pain was so intense that he was unable to focus on anything but at the same time it's worth noting that misspeak or knew that mr childs there was working throughout this period and the homework that she gave him as part of his mental health treatment was to work as much as possible so i think even setting aside what mr chester's work activity says about the effects of his pain the medical evidence also shows that pain did not measurably limit him so for example medic met parnay mental status examinations were within normal limits and as was no previously noted when dr radically examined mr chesler he remarked that mr chesler did not appear to be in pain and takes no routine pain medication the only limitation that dr radicchio actually identified is that mr chesler would have to chew carefully and while that certainly problematic if not a basic work activity that would reduce mr chester's ability to work i think it's also clear that mental health his mental health didn't prevent him from working because he reported over and over that he felt better when he was working with mr chancellor mr mental health and point appointment he said quote i guess i was working and forgot about it that's in the record at four twenty nine and as i said the therapy homework that misspeak or gave mr chesler included that he work when work w available so working was not the problem it was the cure the only difficulty for mr chester with and finding it was sergeant the only difficulty for mr chesler was finding it so on the one hand he says that he couldn't work because he was depressed but in fact he was depressed because he couldn't find a job and that's just not what the disability that's just not disability within the meaning of the social security act unless the court has any questions that once again the problem with the government's argument here and with ailes is decision is it's all about stuff that comes after the step two determination you can't turn somebody down it's step two because they're doing some sporadic work activity the question is do they have a physical or mental impairment that more than minimally affects their ability to perform any basic work activities the fact is that he did not sustain work even though during that time period he was homeless he was living in his car he was desperate for work of course he worked as much as he possibly could he was in dire straits the record clear as to how long he was homeless it's not exactly clear but it shows up throughout the treatment notes where he just lost everything last goes up in the summer of two thousand and eight with dr brown he was living in his car with his dog right that the after that i didn't see well he did there's no treatment notes that show that mental health helped him eventually get housing subsidized housing that does show up in their notes the other thing that i guess skews the whole analysis here that i think is very significant and bears repeating or mentioning is that the l g a accused kessler's mental health therapist a providing false opinions in their treatment notes in order to keep quote in order to continue to keep his file open and to be able to build the s h s that is outrageous language it's unsupported by any evidence and would note that there would be ups and downs but with respect to this g f score it was always between fourteen well a chimp score is and is not the final word ever on this all the g s score does is sort of summarize what you're actually seeing in the day to day  treatment and in the day to day treatment they were describing him as yet there were days when he was trying to work with there were a lot of times when he was just down and depressed and didn't want to get out of bed so it's always between forty and fifty regardless of what was going on but that was their overall view of his mental health state that's correct i'm just saying that you can't look at that score and then say all are there for these people are lying in their treatment notes in order to keep them on their caseload that got better things to do than help people who don't need help mental or physical impairment at all nothing that lasted twelve months i the record here does not support that and that's why i'm asking for a reman to it for to unveil jason that they can go beyond step two and evaluate what time period did