but we are talking about in this particular case is an issue that this court has for more than a decade indicated that social security needs to live with which is the issue of work pace and and th pile of limitations and restrictions social security is chose to call residual functional capacity and whether you think about it and i try to explain it to people as literally a criteria understanding a member information interacting with others concentration persistence or maintaining ace adapting and maintaining the oneself if they are to marked you qualify as a matter of law for benefits you're found that you work the question then is if you don't have to convert this into or set of restrictions that are propounded to a vocational expert by a hypothetical question which if you have enough restrictions well women a competitive employment the national economy does not mean all employment just means a significant number and in this particular case if you look at this particular record you see that mr or bana as a problem with pace cases not just the skill level the court noted recently and one of my decisions that the pace is not something that is handled simply by skill luck because even unskilled jobs require a certain level of speed and persistence and pace is defined as speed and persistence and in this interaction with others and the public and coworkers and these do not adequately address the issue of speed and persistence let me start by just noting that dr ellen rosenfeld  comment i mean i do want to point out that dr more a moment in his opinion he talked about inability to maintain attention and stamina over an eight hour workday i can't address the stamina issue so in other words she indicated she could not address mr banach space and his ability to persist in that job and you look at the rest of the he testified on page fifty five of the record after hearing i only can said about ten minutes and then i got to get up and move around a little bit this is him attending all beings in his community i just got to go and walk around a bit and then when i and after i walk around a little bit i can't i can't just do it any longer than i got to sit down for a little bit again and then i'll have to watch a little game and then do that back and forth bannock for four months and walt's craft he was slow it is chop he also would just get up and walk away from his work station several to many times during the workday again this is an issue of pace he was asked then about his ability to perform these jobs why he was only working four hours a day he testified on rebut it i tried it once or twice and all after i was done  i could not i could not even think clearly in my head and then that there is a couple of times i did i had a hard time making it home in my car i was just this is wasn't driving twenty seven miles  in his evaluation he noted that they were exacerbated by his motional response and to his ability to handle the situation dr moment noted side effects from his medication would cause to maintain attention and stamina through eight hours of activity he has made a conscious effort to remain useful employed part time as tolerated requiring a structured work environment to compensate  thinking required medications that would affect his performance in order to control us in other words your honour's this is a situation where we have an individual who has a multitude of medical conditions all question it's supposed to be added to the pile of restrictions nowhere in the hypothetical question proposed to the vocational expert was pace address the court has issue numerous decisions on this saying that simple routine repetitive doesn't matter social functioning doesn't matter because that it deals with either social function or adaption changes doesn't matter fargas indicated that that does the medical condition could be resolved by a particular limitation in those cases those have been were the individual has anxiety related primarily to his ability or working around others and by limiting contact that anxiety would depress would diminish in those types of pieces the court has said pace is not required all other times the chords indicated pace now and correct point of law it just means that social security which i define many times as an ocean liner trying to turn by use of a spoon for a writer just hasn't caught up after this twelve years that this court has been making this  and i would encourage an ask the court to continue to do so again and find that pace is an issue in this case and this matter should be remained and for the sole purpose of addressing his diminish a inability to perform either by persistence or speak but that if there are no questions i will reserve the remainder from  ratified this by this court many times most recently in saunders in june of this year got the medical experts come in and help her understand what limitations and those record those limitations opined by the doctor did not that said quote it would mr mr urban experiments would make it difficult for him to hold down a full time job it's important for the crew to know that that note was four and a half years before the adjudicated period in this case began mr i'm sorry m time his doctors frequently noted that he see pap treatment was more effective than he seemed to be letting on that as he made allegations of fatigue and his doctors expressed skepticism of that he was being fully forthcoming about how useful and  quote i believe you can find meaningful work i believe you will be much better off in a structured environment with repetition chores which arguably is very close to what the old you found here and environment with simple decision making if you workplace phrased i think that that would not be sort of in keeping with the spirit of that admonition when you look at dresses the residual functional capacity find it as a pilot for sure actions and it is in a sense but what it is be able to has to put together an account of what he or she thinks is like a f statement of the limitations of the specific functional work related limitations that are supported by the record and the elder has a little bit of discretion and in that regard if evidence could go one way or the other there's kind of  choice that the l j can make as a judge and choose that path so long as that path is reasonable then this court shouldn't disturb or it should be protected under the substantial evidence standard which is meant to be a forgotten standard which again be stacked the supreme court recently reiterated with a low evidentiary bar opposing counsel also says that simple route limitations simple reason repetitive tasks is not a real limitation now this court has kind of gone both ways on this issue if this year it got the testimony of a medical expert and then relied entirely on that testimony to give a reason the count of the mental limitations that were and that's what we have here i would be happy i don't know if the court would like it i would be happy to address briefly the changes in the regulations because much of the case law that opposing counsel points to is case law that deals with the prior regulations and what one of the things that have driven the court's concerns with the prior regulations is that the agency hadn't taken occasion to explicitly define what moderate meant and so moderate exists in the middle of a five point scale from none to muzzle to moderate to march  and so i think the court seeing that moderate existed mill thought well this is you know if you take it on kind of a percentage scale this could be pretty significant and moderate can connote significant limitations but the agency took occasion to define it specifically to mean that it moderate reading in a domain in the b criteria connotes an adequate effective and independent ability to sustain that activity or the activities within that domain fairly and fair as we as we should sort of argue in our brief is not for the define but the ordinary meaning of the word fair is average or adequate right so an individual might unsupported then that that then it should be found to be supported by substantial evidence if in in some of the case law as we argue in our brief it seems like the court is concerned that the ale j there gave great deal of that report but doesn't cite the conclusion in which dr pritchard said i think you can work i think you can return to work and in fact noted that his job the job you've been doing part time as a punch press operator was good work for him to do and ultimately in this case the l g found him to be capable to return to that work only full so there was plenty of evidence in this case for the ale j to reach the conclusion that she did and because that's the case because there is no sort of situation in this case where that has been the case in some other cases where the l j seems to have overlooked key evidence that went the other way or it seems to me it's a mistake of law her decision which which was made in passing is that you haven't proven her expertise she's a psychologist her resume is in the record the attorney who represented mr burnett before the l j conceded her expertise and she testified that she understood the agency's regulations not clear what more she and a lot to address well let's start by this constant resuscitation of the stick decision the standard of review for these cases dates back to the one thousand nine hundred and thirty s with the n l r b cases and his conclusions that's the substantial evidence to us and in this particular case it's not all of a sudden car mr banneker indicating that this issue raises the state agency doctors on page one fourteen and fifteen phone moderate limitations in the ability to complete a normal work and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without unreasonable number and length of rest period that's their finding all right we're not asking for a categorical rule there is no categorical rule in these social security cases they are fact intensive that's why we're arguing facts we're not all asking for a categor restrictions are and i read the findings and dr pritchard's opinion that support the conclusion that he cannot sustain competitive employment as far as the what whole issue of pace again we starts talking about moderate but if if i did not cite it in my brief i will be perfectly glad as a supplemental to this argument the commissioner in the registry the federal registry adopting the new regulations indicated that the term moderate as they have defined it is something that social security had a longstanding understanding of so in other words they can define it now but their lead turning around and saying well we're just defining what we are already understood to be so there's no change in anything again it just comes down to the simple fact of whether there's enough there and i'm not saying that the judge had to follow this and say that there was a pace issue the judge at least had to address it and say why there