good morning may it please the court kathleen ballenger is disabled by a combination of her impairments both mental and physical including back pain now feel joint headaches weakness in her arms depression and anxiety and she did what she could to remember to remain a productive member of society with the commissioner used these efforts against her to find her not disabled this case was was briefed in detail and i'd like to focus on just a couple of the errors the first one being the evaluation of the mental impairment by the administrative law judge here the administrative law judge did recognize that there were severe mental impairments of depression and an minimal effect on basic work activities but the second step the severity step means is that the administrative law judge recognized that these were medically determinable impairment i had been diagnosed by psychologist s then the disability determination services consultant one of the agency doctors identified a number of moderate limitations that the administrative law judge did not accept and that is why it i severe impairment that caused moderate limitations now the administrative law judge even acknowledged in the decision that there were moderate limitations some of these limitations were for example moderate difficulties maintaining attention and concentration and moderate limitations inability to complete a normal work day and work week without interruptions from psychologically based symptoms moderate limitations inability to perform at a consistent paste this went on and then the agency the agency doctor then went on to say that because of these moderate limitations the individual would have problems would be able interact with the general public but only in a nine confronted manner and so the administrative law judge recognized that there were these moderate limitations but did not include these in the residual functional capacity finding that he presented to the vocational expert therefore he didn't mean to step five obligations at step five the administrative law judge has the burden to show that there are other jobs that the individual can perform without presenting these functional limitations there's no  the foundational questions should have included these moderate limitations on interacting with the public and concentration and pace and the types of jobs that were identified were jobs that very well may have involved pace i'm not a vocational expert so i can't say but there were two jobs identified an order a clerk and an appointment clerk you know it's our argument that the appointment clerk files for other reasons that did not meet some of the agency's own regulation the order of clerk was a type of cashier which involved working with the public now the combination of physical impairments that the that mr ballenger had including her neck problems her pain problems the fact that  and the vocational expert identified a position that involved interaction with the public and there are other problems with this in ministry of large age specifically found that there were problems with ms volunteers net and did not take that into account at all in his residual functional capacity finding that he presented to the vocational expert that neck mobility certainly seems to be relevant to a cashier  position where one is leaning over and giving change and taking tickets and that kind of things so that was certainly one of the problems the mental limitations were another problem and now mr volunteer also talked about her neck problems repetitive movement and he asked he said but i think realistically probably sedentary maybe a little like like ten or fifteen pounds occasionally certainly not repetitively throughout her workday but occasionally i think that included the other stand and walk maybe fifteen twenty minutes the other physical limitations and then i think that was reading clark problem better still with fairly simple instructions no long complicated schematics and books on how to do things and th record three eighty four dr brown stated she does not appear to be suffering from a debilitating psychological condition it would appear unlikely that she would be able to be employed under the current circumstances given her problems with pain and expertise as a psychologist in further evidence that supports only moderate limitations other then all of the doctors being consistent with only moderately mutations is that the ale jane noted that she she it was recommended in march of one thousand nine hundred nine that she have a second that surgery but she postponed that back surgery so that she could finish school and she did finish and she graduated and got her degree and she stopped working in one thousand nine hundred eighty nine because her daughter was and she wanted to stay to raise a child she wanted to be a stay at home full time mother and that's a lot of bull but it's not evidence of disability any social limitations were not supported by the  evidence because of the fact again that she attended school five days a week and she had weekly contact weekly social contact with her friends and she filled out a questionnaire which stated this and that at one twenty six the psychological opinions twenty two they said she was able to understand follow in remember more than three steps verbal and presented material she's able to persist at simple and complex over learned repetitive tasks for a minimum of two hours within a normal work she could work with supervisors coworkers and would be most successful at low stress occupations where she is able to interact with the general public and front of member she's able to adapt to situations requiring independent functioning manage money provide transportation and care for independent lives without assistance so clearly any psychological problems that she had were very very moderate minor they certainly didn't which is seven months after the l g a decision and it doesn't relate back to the period prior to in on april sixteenth of two thousand and one the note states no lifting greater than three pounds for  that one could interpret from the snow is that on that particular date and possibly for some unknown unknown duration of time afterwards that she was supposed to follow those instructions we have no idea why she went to see dr kane and that's the first time we see dr king in the record by the way that is on from the questionnaire we can see that she was having some difficulty with her left arm but the problem had not been diagnosed in this is demonstrated in questions two and three where it says still being evaluated and that's at six thirty one to use left arm for any lifting of children would be the reasonable interpretation since that's naturally the question which was directly put as to how does it affect the person's ability to care for children but it doesn't say limitations and mental functioning however an aspect that was consistent in psychological evidence is that there was a relationship between the pain then as far as she was feeling and her symptoms of mental impairments and that there was an insurer lation shipowner pain increased her symptoms increased this was something that the administrative law judge was required to consider under social security rolling ninety six dash seven p a psychological basis for the pain or the interrelationship between pain and physical symptoms now saying that an individual is able to commit and says to to complete an associate's degree  three years really has nothing to do with the symptoms of depression an exacerbation of pain when the individual is taking three hours of classes a day when that individual is able to take an hour break between classes and stand during classes and has a special chair the individual must ballenger really tried she wanted to go back to work and she thought that this accounting would would be her her career and she did everything she could when she put asked that surgery it off against her doctor's advice for just a little while and he gave her some injections that basically got her through the end of her term two weeks after she finished her degree she had that surgery  this is not an individual who has to be l j so i can be where she wants to be if she wishes to be this was not an example of mine going this was an individual who powered through some serious pain in order to try to find work