good morning your honour's may it please the court we come before you with three arguments us morning first that the l j is not qualified to decide whether i q test is valid and with second without the ail j s an educated uninformed opinion there is no substantial evidence that the i q test in this case is not valid and three while we submit that the case should be reversed and rendered if this case is remain ended social security should be required to acquire the sting twelve point zero five as it existed at the time as bar application was filed first we submit the a l j is not qualified to decide whether i q test is valid because in a all j must evaluate activities showing adaptation contrary to the i q the court has been careful in pa cases in laying out circumstances which can invalidate an i q in those cases the claimant had said he could work or had significant work history the claimant did not contend that the claimant had no more than a marginal education and or the administrating psychologist did not say that the claimants like he was valid actually said was invalid these factors are not found in his barges case the a l j does not have the needed expertise to decide what factors are consistent with i q scores but that is the whole of whether whether it's correct or incorrect didn't the ale j purport to provide some why he didn't find the i q test to be accurate for lack of a better term that for example one of the doctor said that in this barge although she wasn't that she didn't give full effort and that given some of the other things that ms barge was able to do in her daily life the ael j didn't believe that the i q tests were an accurate description of her intellectual ability so that the i q test you're talking about is dr schwartz he's the only one who gives an i q test and he doesn't find he he knows about her work history he knows about her activities of daily living he knows about all those things that the judge mentions and he still does not find that her i q test is invalid so he has a medical doctor is taken into consideration we said that the things that the judge then says are inconsistent with the i q score can't come up with the can't make that medical decision on his own we say that what's the medical decision you're talking about a validity of an i q score you just said you just said that he can find it invalid so you look at the evidence and if and if there's medical evidence that shows validity then he garner who he relies upon but it's not a question is it always a question of political you have an i q test for example right at the borderline score of a certain category or impairment the ael j can't take anything else t it is it's a question of fact but i don't see how you could find that there is substantial evidence of to support a task when all dr barnard did that's who he relied upon dr garner reviewed the records from dr schwartz and just said well you're the one who did the testing you're the one who interviewed her you want to talk to her but i think that your conclusion is wrong about your own testing well set that aside for a moment the testing she she also has to show that she has to have a functioning that would overcome the presumption that the testing the lower testing score gives to her and it seemed like all the doctors testified evergrey that she had these these abilities to function which took the presumption the i q test seems to be lower than he would expect but he does not say that she is doing anything or that she's mulling during or doing anything with it but i thought the activities themselves she self reported a number of activities which the judge relied upon  challenges the judge's findings of fact in that regard and evaluating those whose activities i think i think so i think that it's hard to say that when you have a doctor psychologist and he's the only psychological evaluator who does testing and he has the same facts in front of him as to what he what this barge does during the day that he would say that that the the judge could say that those things invalidate the i q test whereas the doctor doesn't think so the doctor thinks that it's valid and consistent i think judge chuck is asking you something a little bit closer slightly different which is assume assume that the test is valid you don't stop there right the ael jay doesn't stop there if the ale jay had found the tests are valid he's got to move on to other sequential steps right and so the question is at those other already talked about and then we have dr petzl who reviews the file for t d s and it's unclear what he finds he makes some comment about and validity but it's unclear if he's saying that he thinks that it's invalid or if he thinks that dr schwartz said that it was invalid but the judge doesn't really discuss dr pencils opinion so it's not something that i was going to bring in from this court and then the commissioner decides that shorts isn't enough and then they start sending out doctor's report of the basically the same activities and the judge determined that they didn't meet the requirements of the report of the listing and so are we to now reevaluate those activities and disagree with do we have the authority to disagree but there wasn't much conflict as to what she could or couldn't do was or know that this court has had other cases and in those cases those activities of daily living are not enough to to invalidate what you score these other people had these other things that i had have said that the i q test is invalid so that's what that's where this the crux of this argument comes from is that the court has left this opening and we think the misfired falls into that opening to determine that was barge demonstrates adaptive functioning sufficient to set it aside the i q test he would have to evaluate things like her activities of daily living which we talked about the fact that she was in special education that she reads at a fourth grade level she does math at a third grade level and the one a that we talked about furthermore through the use of the grid rules social security knowledge is that as you age a normal person's ability to adapt to work changes the algae does not have the expertise to determine what effect talked about that i've talked to you about the first two doctors dr schwartz and dr petzl but then we also have social security who decides that dr schwartz isn't enough they decide that they're going to send questionnaires to to more doctors and ask them to review their records you're going  commissioner's decision finding that the claimant did not meet the listing for intellectual disability and denying supplemental security income i think that the most important thing about this case is goes to one of the point about what the claimant was capable of the record demonstrated that she could read and write she was able to handle her deceased husband's life insurance matters she handled bills she monitored children including her grandchildren she managed a household independently she passed independently the written portion of a driving exam and she drove a church bant van several times a day transporting elderly people to church and to the store and went grocery shopping for them these are not the adopt evidence from medical sources in determining that the i q scores were invalid he realizing you're saying he made a medical determination no i'm saying that he made an administrative determination about whether she presented evidence that she met a listing which to meet the listing you have to show that you are you have to present evidence of a valid i q score within the relevant ranges what is valid i q score mean while valid means accurate that test assesses what it purports to tests and the record shows dr schwartz is consultative report in particular and the narrative report that accompanied the i q scores shows that she felt and i know that i know that most people have been referring to  to use low effort short of the lingering to invalidate not to diminish the weight of but to two invalid the a properly administered i q test score well i don't know that it well when you say properly administered it was proper there's no there's no the ael j said nothing about the improper administration of the test right there were no questions about that issue that's correct your honor but there are also to be presumptively disabled into the listings and so if you find that the claimant did not meet her burden and if an l j finds that the claimant did not meet her burden to provide evidence of valid i  scores then she doesn't meet the listing that being said of course the judge can still consider the i q testing in assessing her cognitive abilities and in fact that's what the judge did in this case even though the i q scores were not valid for purposes of meeting the listing for intellectual disability he's still out of an abundance of caution in giving her the benefit of the doubt assessed that borderline intellectual functioning as a severe impairment and then impose d mental aristid limitations including simple routine and repetitive work which all of the medical sources on which the l j relied indicated that she could perform requisite deficits in adaptive functioning so that's an element of both twelve a five b and twelve a five right but those two are not exactly the same in other respects right so for the i q scores that th twelve o five the range and that seventy and above i just want to make one final point and that is that the claimant has alleged that this case is different from other cases because in the fact that she has there's no evidence that she can perform full time work at s g a levels she reported a work history of working part time as a food server for three years  e this was part time it was still thirty hours a week there's no indication that she quit that job because of her any mental difficulties or limitations that was it was because she described it as a program  ending she also worked full time per her own self report on a work history part in a flower arrangement manufacturing and that was very leopard years well these predated the fifteen year period that would activity you have to but you have to take all of that into account with her other physical limitations too yes and she has a severe physical limitations doesn't she that's undisputed two well she does have severe physical impairments and impairment and the commissioner's position is that those mental impairments did not prevent her from performing work activity even if her physical impairments may prevent her from performing for instance heavy work i'll tell you i mean i know the standard of review is very deferential to the commissioner and that's the way it is and that's what will apply but this case if you look at it from my perspective on of the noble basis cries out for a different result  i mean i i have to disagree with you your honor i this is these activities these are the kinds of things that we see all the time in claimants who don't need a listing for intellectual disability they l j thank you first i would like to distinguish the smith case the smith smith the commissioner that was on page twenty two of the government's brief there are a lot of other things that are going on  they claim in that case did not even say that her that she had mental impairment and she attended school through the twelfth grade she earned a ged and she had passed relevant work as a nursing assistant she passed a nursing assistant test that shows a lot more adaptive functioning on this barge has at her eighth grade education with with her with her special education from grades four to seven well i think i think you're right that that case is distinguishable on its facts but doesn't stand for the proposition that you can take into account all sorts of other non medical evidence to determine the validity of an i q test i think so but the judge the doctor who did the testing had all these other things in front of him and it did not make him think that the i q test was invalid just as your honor pointed out just saying that there is a low estimate there's nothing that says that when you have a low estimate that that means the test is invalid so the other thing i wanted to mention is that ms barge reports dr schwartz when she she went that she was working four to five hours a week not thirty hours a week i think later her memory may not have been as good as how he got to the hearing which was nine years later  but she originally told dr swartz she was only working four to five hours a week which again is a lot different than part time work and she said she was doing it so that she could get food stamps and then as she got older her condition got worse she said she was no longer able to do her work as a flower shop attendant because of the caring and lifting so if as the age increases we submit you know that the judge does not have the does not have the medical expertise to determine how of benefits because there is not substantial evidence to support the judge's decision and we know that the social security act is supposed to be a remedial statute it's liberally applied  the old regulation should apply we think this that social security cannot engage in retroactive rulemaking which is what they've done by changing twelve in a five city and that they would have to have expressed grant of authority by congress and  supreme court held and go and be georgetown university hospital the retroactive rule alters her existing rights and it's impossible to go back to two thousand and nine and show that she would meet the listings as they are now so we developed the case under the rules that applied to her at the time and we think that those rules s