read your opening brief basically just say that you always have to have a vocational expert and by the time we got to the reply brief there there can be instances where you don't have to have one is that correct that's correct all right so maybe i'm just from a policy standpoint you know i think we're talking a little bit about line drawing here you know when do you need to have one when you don't need to have one so that you can give us some legal and practical guidance there in terms of the findings he said both the back and the depression separate apart from each other were severe impairments and this court has repeatedly said that once you have a severe as opposed would be this court decision edlund that even though the ministry of law judge did have a vocational expert he did not ask at step five to consider the depression which was found to be severe previous cases would could get that you could do that what you're saying is because of the mental in the mental disability even though with a back injury could do those things the mental disability would prevent him from being alternate occupations now even if we assume number one that the administrative law judge is residual functional capacity finding was correct once he got to step five having assumed the never gave job incentives and there's a fundamental requirement for this finding to include some reference to the frequency of these alternate occupations in either the local economy or in several regions of the car several regions of the country now this court and barker though it's not cited in my brief was confronted with whether or not a certain particular number did or did not constitute significant numbers that's not the issue here the issue here is the absolute failure on the l g s part to give this any number whatsoever and for that reason alone the case should be remanded back wasn't there evidence in the record that he was able to do activities of daily living in maintaining social functioning there was evidence of that and that was one aspect of the ale jase finding with regard to his mental condition the the more germane to this particular case relates to a second of the four categories your honor that being his ability to focus and concentrate on certain things and that's what the for legal reasons because i'll get rid of that for legal reasons first because that's the least of the reasons that was not raised as a legal argument  the a l j rejected those opinions and the appellant did not raise that in his brief did not complain of the rejection of the treating physicians opinions regarding the back  pain now for substantive reasons the a l j had substantial evidence supporting his rejection of the treating physicians opinions regarding his back pain as the a l j and the district court in a outraised decision saying that the clinical findings were consistently normal and showed that there were no laboratory or diagnostic tests that show that there was anything wrong with his back it was essentially a mechanical problem as opposed to a end of organic problem and for that reason what does that mean that means that what was wrong with his back was something in the nature of a muscular skeletal problem that could be fixed through exercise for example when doctor miguel told him what he needed to do was get out and exercise passive treatment didn't make him feel better what he needed was that exercise so he fired the doctor who said you need exercise to feel as though we had an arnold schwarzenegger doctor that wanted fitness and heart work that's only other d the doctors who said there's nothing wrong with you you can do light work and all the doctors said no you can't go back to your work as a heavy equipment operator and a truck driver but you can do a lighter type work and let's get you to vocational this area just from a practical standpoint what goes on here it seems easy enough to have a vocational expert just come in and add that to i mean how often you know as a practical matter do happen come in or how frequently do algy's have to make a decision here whether you know in terms of this line drawing i mean if we're going to step into things as the court you know give me some parameters as to what we're talking about part of you know jews job is a matter of judgment a matter of efficiency of moving his stock in determining which cases merited which cases do not and contrary to counsel its argument there is no bright line level when people you know talk about that you have to you know you got to be a little concerned not everyone wants to commit suicide thankfully well you know at one point he expresse that the claimant in that case had marked psychiatric difficulties was seriously disturbed in this case the finding was that the claimant had mild to moderate concentration difficulties i have used the word severe no sir no ma'am excuse me did not that was claimants council's characterization the finding  who was the the reviewing physician who reviewed the medical records was mild to moderate art but what did the court say when it moved from step two to step three where the courts frightening a step to finding as justice o'connor your curt is merely a threshold determination as to whether or not the commissioner should go forward with just mention of valuation that's all it is that is all a step to finding merely mentally impaired at step two the consequence of that was the end at step five those mental limitations were not included in the hypotheticals to the ve that was the consequential finding that there was a moderate impairment in concentration and the a l j accounted for that by finding in his residual functional capacity assessment with the acronym for which is exactly there i mean but when it's your argument logic ok so we need something this court may certainly supply th would like to point out the evidence that supports the position of the commissioner that for example when dr brown administered the minnesota multiphasic basic personality inventory the claimant sat still for two and a half hours and even when offered a break he declined taking a break which certainly shows his ability to concentrate and shows that he's able to sustain his focus and attention for two and a half hours now that's not evidence of a seriously or a mark of late disturbed or impaired individual who cannot concentrate sufficiently for a job so the a l j have substantial evidence i urge the court to affirm the commissioner's decision as the district curt court did and i thank the court for its attention thank you for your argument i'd like to go back to when and why it applies relative to the benches questions opposing counsel use the word significant and i believe in correctly the primary test is number does indeed impose significant limitations the regulation of finance to barry says the converse it does not impose significant limitations and where we're getting caught up here is once the l j made a finding low back pain and depression impairments that are severe within the meaning of the regulations that continue but not severe enough to need or we will one of the impairments listed in append right that's correct so that as the you know i hate to parse things but it doesn't say the mental was severe the back with severe it says the mental and the back so from that