am j is required to consider all of the relevant evidence and address that evidence in a balanced manner the a l j must confront any evidence that is contrary to his conclusion and explain why it was rejected if the a l j fails to do that it's reversible error in this case the a l j found that mr connor spinner's depression was not severe and went through the evidence that supports that conclusion the a l j didn't mention seven pieces of evidence that are contrary to that decision and i've set those out in my brief and i can go through those if you like but the the decision by the ale jay is frankly pretty one sided and doesn't i mean i you know obviously i don't like the conclusion but the problem is not to decide where your side you'd be happy about it with a one sided put a catheter yeah so tragedy and i'm not you know i'm not here to ask the l and one of them like the the first one for example there was a diagnosis by a psychiatrist that mr connor spinner's depression was that there was a diagnosis of major depression recurrent severe that l j mentions the diagnosis of depression but doesn't mention the diagnosis or the severity that it was recurrent and that it was severe and ends up finding in the decision that her depression was not severe we did look at some document at least at some point in her life where she seemed to be doing pretty well yeah and there are times it's kind of a typical case or a classic case of depression there are times when she's doing pretty well there are other times when she's not and as this court has noted in scroggs them and other cases of depression systems and symptoms and mental health system symptoms generally a wax and wane and so she's at times done pretty well at other times she's not done very well at all and over the course of the time involved here which goes back to december of two thousand and three  that's what we've seen is sometimes she's doing pretty well and sometimes she's not and for her to be able to sustain work when she has these periods of waxing and waning it's an employer's not go and so yeah i am asking for remained so that the a l j will consider the evidence on both sides of this issue and it's material because that when when the o j does consider both sides of the issue if he decides that oh yeah you might injure point she's made i think you made ok ok ok well anyway we're looking at this the two pages this is what you're saying is is was it an order or not properly considered right because it is a problem with all of these so security cases there are people who are generally got a lot of things wrong now in this case to cheat descend to the fifth level or did they get that far yes this is a step five  facetiously say that there's a job that they'll claim that once and that no employer wants to hire that's another said right but when you get to that level there are still opportunities available according to the vocational whatever you call them by vocational expert yes and given the residual functional capacity and then the accompanying hypothetical question to the vocational what we're talking about here is severe depression she's impulsive the these think these pieces of evidence show a severe level of depression impulsivity inability to control her remain and say ok i'm looking at all of the evidence i'm not just going to tell you about what i think right of the evidence and supports a denial i'm also looking at the evidence that supports an allowance and tell you why i'm accepting that or rejecting when you get a total fuel that you don't have any predicate for the ability of her to work right if yeah i just i just need the a l j to do his job ok and th what in the first the first time this case was before this court the court said jay you have made a finding that mr connor spinner has moderate difficulties with concentration persistence and pace but you didn't include that in the hypothetical and on re man dale j said wow i see what the court said i find that she in fact does not have moderate difficulties with concentration persistence and pace so therefore i don't have to include it in the hypothetical question you see disobey decore man you know are going to be a better word either one of those works wood look these are always tough and that's the problem then when you're put a magnifying glass on it it becomes difficult because people have lots of problems and they can still do certain things i understand that and if if this was about the l j didn't mention that she had a bunyan on her third tell or that she had a cold for a week i wouldn't be here but these are all to do with her depression and they all indicate  severe depression or if she talks about that at least half of her days she wishes she was dead and you know a person can't function when you're in that kind of state they please the court enter not on behalf of the acting commissioner of the social security administration in regards to the question of whether the l j ignored or looked sideways when the court issued its previous instructions i want to note a couple of things first one able to make a decision and then another l j comes and looks at the evidence and says hey this is a little bit different this is a didn't quite consider what was going on over here so it's not that much of a flip flop issue granted you are you're correct i mean it's the decision is before the court and it's the court's instructions that are at issue the second point i'd like to make though is that that argument was waived that's a lot of the case argument that this court had previously established that c p p was a moderate limitation or arguably had established that depression was a severe impairment that the law of the case number one doesn't apply but more importantly it's an argument that was not made for this court it was actually an argument that was made for the district court the district court found a locked case did not apply and then appellant abandoned that argument before this court so it's that's quite frankly not at issue what it is not what you mean it would be a level of depression is not another level of the question is absolutely issue i'm saying the question of whether or would not be i mean there's no comparison but it is it could go a credibility thing that it is that a possibility of testimony and thing credibility is not really raised in this case it's not a question appellant's credibility the sort of sole laser focus here are these seven issues cited by appellant this case is really just about what the l j did not say and it's a question of we have this evidence out here that the l g did not discuss was the ala j required to discuss it that is the laser focus of this case and appellate argument is that these items show that the appellant actually had depression as a sphere impairment  argument is that the l t a did not need to discuss those items and the reason they did is need to discuss what the seven the seven issues raised by appellant argument is that the l j was not required to discuss those particular citations pieces of evidence in the record because he didn't think there really was that serious level of depression i don't he did obviously did not think there was that serious level of depression it's what i mean i am arguing that he did not need to discuss it because there's just a mountain of evidence on the other side showing that depression is not severe and when you look at the l g s decision that depression was not sort of a hidden ball in this case depression was the issue  when it came back around to remain and the l j gave an exacting focus to be issue of depression this is not a case where there is an element to the l g gave short shrift to or forgot to mention it all and were wondering oh why did the l j think about this only issue was depression in the l j dove into it head first and gave it exacting detail and cited numerous documents that support the finding that depression just was not a severe parent j went through a lot of evidence in short but the real issue was a report from a state agency psychologist dr hoover saw he is the person that is surely found moderate limitations and concentration persistence of pace but then flip flopped in his analysis scratched out that he found moderate limitations and concentration persistence or pace changed it to a finding of mild limitations and concentration persistence or pace and then when this doctor wrote his analysis on a functional capacity found that there were moderate limitations and concentration persistence or pace that decision that opinion by the doctor the l g notes is just all over the map and not supported and so what are l j here did was look at that and said hey if i look at all of this evidence in the record there's just no support for depression as a severe impairment and there's no support for concentration persistence or pace as a moderate limitation and again the elder went through all this evidence find that depression was a severe impairment the only diagnosis was bipolar disorder and that was by history meaning that it was as reported by the appellant then you have a doctor shipley who also looked at the records did not examine the appellant but looked at the records looked at dr kurtz holes report and found also that depression was not severe impairment so what the ails a has is to a state agency psychologist both of whom find that depression is not a severe impairment or i should say one who does not find depression is a diagnosis and the second does not find it as a severe impairment and then takes that in addition to numerous other pieces of evidence which  brief and the conclusion is it's just not a severe parent the court has no further questions  this court of course is not a jury commissioner seems to be asking the court to weigh the evidence and and look at the evidence in favor of one side and look at the evidence in favor of the other and then make a decision and that's not for this court to do that's for the a l j to do the a l j in this case didn't do that this court needs to remain and this case for the a j to consider all of the evidence assess it in a balanced if the of j accepts that evidence then include those limitations in the residual functional capacity assessment in the hypothetical question if the l g a rejects that evidence he must articulate or explain his re releases he said there's a mountain said she's not severely impaired there is evidence that says that she's that it's not severe there's evidence that says that she is superior that's not for this court to say well i'm go that i haven't looked at all of these documents and would prefer not to unless there's something that's really a glaring error well in the glaring errors that they all j looked at the evidence that supports a denial or supports a finding that the depression was not severe and didn't deal with didn't concern articulate didn't confront the evidence in that finds the other way and that's and that's for the algae to do and he hasn't done it thank you