appeal based on the same impairments because her arguments relied on evidence that was outside the record at that time that decision is final as to her disability prior to april nineteenth two thousand and twelve so we're here dealing only with the issue of whether she's been this disable since april two thousand and twelve but now the record shows that she meets are equals listing one point zero four for her spinal impairment because the commissioner's own examining consultant dr wasif found a positive straight leg raise in both sitting and supine positions and this destroyed generation and bilateral recess the gnosis and narrowing of the in the spine where the nerve goes through you're referring to diagnostic procedures and evaluations that are done now be looked at in a different way well i think even previously there was evidence but now we have the definitive evidence that dr wasso found the positive straight leg raise which is a definitive test of a ridiculous up a theory and that is what listing one point zero four talks about this confirms those tests and in addition  wasif noted that she walked with a limp that she couldn't stand it me see if i understand your argument your argument essentially is that they d previous one was because you your client did not introduce evidence at that time or didn't introduce it in ways which was acceptable wrecked and so she lost because she didn't meet her birth wrecked but that that evidence but which is relevant to her continuing situation now is soon to have is properly introduced and it is on that basis but you are arguing to she's covered yes and it's not just based on the spinal impairment no i understand i just and so we have additional evidence on the spinal impairment and addition our preview we lost last time because there was not an i q test on the record and i had argued previously that the judge should have ordered a consultative i q test and the court found that it didn't have to based on that record so now there is an i q test it shows a full scale i q of sixty six which is considered to be mild mental retardation it was an accurate valid test the commissioner did not do anything to try to get their own test or dispute the validity of this valid test standard even then they've now this plus additional signs right yeah all right so now we have but you don't even need to me to list next contestant no because as long as there is a significant other impairment at i believe that she meets unequals listing one hundred four in and of itself but with the i q of sixty six and that's presumed to have started before she was twenty two there's no evidence that she wasn't and addition to a significant other impairment she's in minutes listing twelve point zero five that the commissioner and they all j had all these suggestions that she probably had a cognitive impairment to rule out borderline intelligence and yet did not order a consultative exam discrediting her testimony and williams b bowen a seminal case from this court says when the subject of testimony of pain and disability given by a claimant is consistent with the objective medical facts an expert's opinions a finding of poor credibility is not supported by substantial evidence so here we have all these objective tests that would show why you would have severe pain well but finding a poor credibility in this case was based on inconsistent statements that she made you know that's a separate issue about credibility doesn't just good ability in terms of these tests it was whether when she testified at different times she said things that were inconsistent now you know one could also explain that in terms of somebody with a low i q that they are likely to do that and that that's not a matter of credibility in the sense of trying to be false but i don't think you can just say her credibility was fine because but but it's not substantial evidence to find that she was not in pain when you have these tests that support her pain maybe the judge can say you are not perfectly consistent all the time but it does not raise to the level to say you're not being honest or exaggerating and no doctor ever felt she was exaggerating and so there certainly is not substantial evidence to find that she's not in pain so even if she doesn't meet one point for her credible testimony about her pain would be enough to keep her from doing any work she talked about the side effect she has from her morphine which helps ease her pain and the judge did not consider that i don't think any reasonable person looking at the evidence from both sides could conclude that she's not disabled and i won't discuss the immune disorder and carpal tunnel unless you'd like me to thank you your honors may please the court me on behalf of the acting commissioner of social security good morning this case boils down to an individual claimant who has applied for disability benefits on four separate occasions and has appealed that same decision to the appeals counsel to district courts and to this court numerous times with very similar and cumulative evidence as what the record shows for you today and each time the district courts and this court  d the ael j s decision that bush was not disabled and this court should do the same today now i want to address the evidence before the record it is virtually identical and cumulative to the evidence that had been presented in bushie one and bushie two the only substantively new piece of evidence is this i am me this independent medical evaluation from dr richard liotta which opposing counsel discussed and that's the first piece of evidence that i want to discuss today this is the evaluation that included the i q test yes your honor this is the i q test now your honor accurately stated that under listing twelve point zero five it is insufficient to simply show an i q score there are other requirements that bushy must show before even getting to the subsections of listing twelve point zero five and this court actually explained the application of what listing twelve point  astro which is extremely similar to this case and virtue and extremely on point this court explained intel of era that before even considering the i q test an individual claimant must first show me must first meet the capstone definition and whole point zero five which is this follows an intellectual disability which refers to significantly sub average general intellectual functioning with deficits in adaptive functional functioning initially manifested during the developmental period which is before age twenty two  supposed to consider and specifically the criteria that a claim is supposed to prove these include an individual's ability to learn and use conceptual social and practical speech skills dealing with common life demands  it comes from an individual's ability to deal in the home and in community in amongst me just be clear you are saying that she has and she will these you are not saying making the point is to with the case at bar that the operative facts are the evidence during the relevant period however she must still show that these impairments manifested before age twenty two now going to what the l g a reason based on both the your independence of activities of daily living and these facts are extremely probative considering that this court already held intel of error that these are the same factors that an ale j must consider when considering a individual's deficits and adaptive functioning here both the medical and the non medical evidence including bush's own testimony do not support her allegation that she satisfied the list and once again this court held that this is the operative consideration even before getting to the i'm a little troubled when you talk raised you because because there are any number of cases where we have killed that somebody was not disabled  shown it because they haven't brought in evidence or they haven't brought in certain things and yet to time to when we have that evidence know here you didn't have you before that doesn't mean she now has stuff which may have been there before but by itself was not enough that that wouldn't be enough now that is your argument sounds as if you're overstating that's absolutely correct your honor and in fact when looking at the listing analysis the commissioner is not arguing that reza judicata barra's consideration of the listing the commissioners arguing that even with all of this evidence together even with all of the medical and non medical evidence but she still failed to show that she satisfied this requirement of adaptive functioning and once again this court already held in talev era that an i q test is an individual and discrete requirement under twelve point zero five that is  separate from adaptive functioning it does not satisfy the capstone definition of adaptive functioning which is something that bushie must also your argument just following up on the issue preclusion point is not that the evidence of period but the evidence can be considered in its totality yesterday yes your honor i next want to address the arguments regarding listing one point zero four once again the evidence does not show that she meets listing one point  four now as a prerequisite according to the listing an individual must show disorder of a spine that results in a compromise of a nerve root or spinal cord now one point zero four a requires evidence of nerve gogu who was a pain management specialist from plattsburgh who bushie saw prior to the relevant period and during the relevant period on roughly a monthly basis each month each of these physical examinations showed normal benign finding stable findings no pain or controlled pain periodic headaches that were that went away with medication full strength for range of motion no sensory loss no limitations in spinal ranges of motion this contradicts listing one point zero four a listing one point four b requires inflammation of the spinal membrane there is no evidence in the record to show that and listing one point  a claimant bears the burden of proof and must show through medical evidence that they satisfy the listing here and i beg your pardon the analysis considers the record as a whole now here we have monthly treatment records from a treating physician a pain management specialist who treated her for these very impairments and month after month these physical examinations showed normal and benign findings and i want to point something else l regarding dr wassup inion opposing counsel pointed to dr wasis opinion which is which was dated september twenty sixth two thousand and thirteen not only did this physical examinations show full cervical range of motion full extremity and back range of motion but these reports were wildly inconsistent with the reports from bushies treating the treating physician specifically a normal and benign physical examination is treated for by dr gauguin for a link the period of time for chronic pain and she sees him twenty four times between october two thousand and twelve and november two thousand and fourteen you're  right that he reports she can perform activities of daily living in november and december two thousand and fourteen but that she is under constant treatment for chronic pain just her i see that my time's expired may answer and co e that's correct however dr gauguin once again found that her symptoms were stable and this court has already held that diet diagnoses of impairments are insufficient an individual must show through medical evidence that those diagnoses translate  dr gone ellen gone is a local paid doctor and she was prescribing morphine and methadone very strong narcotic medications and in fact the reason that my client had to go to her that many times was to get a prescription refilled and that's what pain doctors often do if she was not getting any other treatment from d gunn now is stable does not mean that you're not in pain or able to work stable this means you're not getting worse and dr gone did note that she her pain was tolerable but tolerable with this kind of pain doesn't mean that you can work the other doctors all did show over the years reflex loss and loss of range of motion  regarding your i q dr welch the commissioner's own consultant twice said he felt that she had severe cognitive limitations making any argument that the medication that she  order to make that pain will render her incapable of working yes yes that was not even considered by the ale jay but even if she doesn't meet twelve o five strictly i think she does vera she she said she worked as a cashier in a stock or at wal mart's but then she said she had to quit because she couldn't lift stuff she didn't know that she can't read well and she can't count but that she could use a calculator so i'm not sure that shows you really have the ability to perform other jobs in this situation i think if you look at even if she didn't meet the listings for spinal or mental if you look at the combination of all these she doesn't have the reasons you will functional capacity to do any work  in this case i think the agree just lee erred i don't normally come back to this court three times but and i didn't necessarily agree with the last decision but that was the decision and i it but now you know the times have changed the evidence is changed and you should remain for benefits only i do not think we need to have another hearing with this record  as a matter of law she is disabled and deserves to get disability benefits thank you thank you beth i will take the matter under indictment