may please the court my name is greg wallace and i represent felicia channel in this so security disability appeal has channels a twenty four year old woman who suffers from mild mental retardation and the issue today is whether the a jay finding that this channel does not meet listing twelve o five b for intellectual disability is supported by substantial evidence on the record as a whole now the record shows that miss channel underwent i q testing in one nine hundred ninety nine and she was a student she had a verbal score of fifty eight performance score of sixty three and a full scale score of sixty five it was noted that her adaptive function was very limiting in all except in all areas except in self care school records show that she was placed in special education classes in all substantive courses such as english math science history she has low scores in other testing that was performed at school the stanford test there were several scores that were in the lowest percentiles the individual achievement test scores within the fifty's and sixty's in literacy testing she scored in the lowest level possible there she attempted to work after quitting school the twelfth grade try and she tried to clean schools but she said i couldn't understand what they were telling me in that job lasted only two months now in january of of two thousand and six she was sent to dr de roque for i q testing and he had minister the wa three which in which miss channel scored a verbal verbal score sixty seven performance i q score of fifty nine and a full scale i q score of sixty one now under the commissioner's regulations when you have an i q test that has three different scores like this you take the lowest one for purposes of the listing so that would be the fifty nine here and that satisfies the requirement for twelve o five b  for intellectual disability now the ael j found that the score was not valid because channel supposedly did not do her best on the test and then he also found that secondly that her activities daily living show that she is functioning at a relatively normal level and so he concluded that she was not mildly retarded but only borderline don't really have to accept that they did not do fair effort toward the testing procedure that was something is not mentioned in the decision that's in his report and then at the end of his report he says the results of today's evaluation find that felicia's overall intellectual functioning is commensurate with the mildly deficient range and molly deficient doesn't mean mildly limited it means mildly mentally retarded that's the term that that psychologist use when discussing the mildly retarded mental retardation is divided into into three categories there's mild moderate and severe and as are citation to the d s m four indicates the mildly an additional impairment yes yes you're exactly right and that you didn't have the fifty nine no she does she doesn't have there's nothing in the record that when in case she has an additional significant impairment they are but under her under her under the rules it's the lowest i q score i mean she her other i q scores were in the sixty to seventy range but it's this fifty nine and all dr direct said is that is that that she put a little effort into the items at hand which i think he meant asked certain aspects of his of valuation and that those that should be simply kept in mind when reviewing the test results but he did say specifically that she gave fair effort on the test fair or well fair effort i mean for a person who's mildly to be mentally retarded there could i can provide you in fact i did with the district court in the brief there i did not include in the brief here but i can provide you with the rule twenty four j twenty eight j letter citing several authorities that carb testing is not a political to people with mild mental retardation and dr de rocha after conducting a very thorough exam examination said she's not mullingar she's not exaggerating  and what the card tests supposedly shows for people with other forms of for example affective disorders is that is is the possibility of  phil the driver's test for time she doesn't have a car and so it's entirely possible that there were transportation issues or whatever there's just nothing nothing in the record for that l j makes it sound like she deliberately didn't do it to avoid you know being exposed as a milling were and i just think that's that there's nothing the record that would suggest that there's no evidence either way either one let's go back is fair effort a term of art or is it a cause i think is probably a report especially since her disability turns upon that and my second point is that when you look at that at the simple admonition you need to keep that in mind when looking at the test scores when you compare that to all of the other evidence in the record that uniformly shows all of that the testing that was done the earlier accu test is consistent with with the i q test not now it's it because it was administered as you at a young age it's not considered valid for only i think for only two or four years and so she was beyond that window but the one nine hundred ninety nine test is consistent with the course found by doctor to row she's in special education classes she's other  testing that was done in the school level show that she was functioning in a very at a very low level intellectually and so when you when you look at that this one single discrepancy here when you're looking and and the substantial evidence test talks about substantial evidence on the record as a whole when you compare that to the record as a whole there are simply not this this one description which was left unresolved by the yale j is is simply not enough to  differ about that as well the the daily activities that that are cited by the ail j here is that she was caring for four children she had a driver's license and she could perform white house work now this was channel testified that her children during the school year are at daycare all day and that her aunt her sister her cousin and her father help her out in caring with these children she told dr de roche she she knows how to heat up her children's formula you know change the crib sheets give the child a bath and changed the  children's diapers those are not activities that require a high level of intellectual functioning and and in fact as we have discussed extensively in our in our br retarded can perform another number of of rudimentary activities of daily living she has a driver's license yes but she failed the driver's test four times she doesn't have a car has testified she rarely drives and she she  on page three of its opinion which is it page seventeen in the agenda here this report quotes a long section out of dr de rose report describing all of these activities but here's the de wrote concluded and he's the expert here that i'll save read the quote again the results of today's evaluation find that felicia's overall intellectual functioning is commensurate with the mildly deficient range and so in dr drogues few knowing about all these activities in his expert opinion that didn't undermine her claim  mild mental retardation and and so i don't know why the district court said that that these comments suggest that plaintiff's abilities and activities are at a higher level than one would expect solely from accepting the lower i q scores the lack you scores important one here determined i think substituted his own opinion for that of the expert and said well these activities show that she's functioning almost normal well that's just simply cannot be  when you you understand both the case law and the relevant literature in the d s m four regarding what the mildly retarded can and cannot do and so we would submit that the l j has no basis in law or in fact for making that determination with respect to her her daily activities under it if you accept the l j's view then the non institutionalized mentally retarded will ever be able to to prove thousand and eleven and the whole case focuses on things well the able jay could have sent her out for updated i q test now now the commissioner's regulations i think actually point out that  q tests tends to stabilize at age sixteen and since no retardation is a lifelong condition that doesn't improve but yes the l j could have sent her off for further testing but it but he did in this particular case sent her out for an additional cause of hate examination a second prostate examination in august two thousand and eleven after after the hearing however as a stated appellant did not show for that that hearing or to that examination not but that's a finding a an issue that the pound isn't raised the issue is not whether she knew about this or the appeals count growth they look at the whole record your honor and that's something that they would have looked at didn't address  scheduled this august two thousand and eleven examination additional testing including this the carb examination but she did not show on the record does not show why in appellant does not raise the issue that she wasn't given notice or anything to that it to that effect this is the the parent to talk about her her life and what she did what the hearings are but when when the i q test issue focus come to come to be the focus of her see the issue came up your honor yeah can you be more direct than the issue is not whether they are j area not sending her out your honor the issue is whether the score is valid this performance i q score fifty nine is valid well but but if the if the finding with respect to about to show testing your honor again as as my cousin counsel pointed out that the the regulations state that i q testing is presumed to be consistent after a sixteen and the two thousand and six issues here is whether the the prior one was val lifetime confronting challenges that she's not able to deal with finds things frustrating and slows or down i mean because the expert concluded does reach a conclusion given all the factors about effort and the motivational factors must be kept in mind when reviewing these scores i think what he's trying to say is that the you know the appellant did not put forth maximum effort on examination she put more suboptimal facts and i'm afeard i mean i'm getting examination and other exam we don't know what she was told about we don't hear out she was represented at the hearing and it was clear at the end of the hearing that this testing score was pretty wouldn't you think her lawyer would have made darn was the lawyer t an ambiguous word here respect your honor i think he does also state that she put forth a poor effort towards the tasks at hand and that the the record shows that he's also states the motivational factors must be kept in mind but  that an exam is valid even though a person even though a claim that did not put forth optimal order to pay for suboptimal effort and this court has upheld that they can reject those i q scores even when the examiner states that the scores are valid when there's evidence of the that they claim to not put forth maximum effort on examination when it gets back to what we were obviously there was enough concern that we want to we want know her she want to marry examination but we don't know what happened we only go with what the the dale j said in and in his decision the yacht and again that's not it's not an issue that the parent raises in this case  going thing we have is is this and again i would just point to the fact that the account does not raise this issue that she didn't receive notice or wasn't aware of it is not a question of receiving no question for a person if she's sixty one would she get an unknown or she understood and appreciated the significance and going to that your honor i would have to show that she received notice of the hearing and was able to come to the hearing and she received notice of the two thousand and six i'd want i'd want evidence of the l j was if his action was for the purpose of adequately developing record wife him or him that do that it's not just sending out a notice to if this matters see my time is over thank you so you're saying that that despite the a l j legal duty to develop the record if she didn't come to the hearing with a new i q did she lose that was what i just heard or my time is