excuse me the last case on for argument is hathaway v you hear or that i come to this court with because my client was receiving benefits as of two thousand and six she was receiving social security disability because she had back problems had had failed back surgery she had a traumatic brain injury that was causing seizures and memory loss and other problems so in this case it's the commissioner that has the burden to prove by substantial evidence two things one that the conditions have improved but number two also they the commissioner has to prove that she's now able to perform work on a full time sustain problems in two thousand and twelve when that wasn't the basis of her initial ninety six two thousand and one two thousand and six terminations it was a basis of the two thousand and six determination that she had her back that's right that's right so we have to look in two thousand and twelve the standard that we're looking at is not this the brain injury it's the brain and the back and even in one thousand and nineteen ninety five i believe she had a huge test that showed she had a full scale like seventy which is borderline mentally retarded but her memory then was less than fifty her performance i q was sixty eight visual memory sixty three and even in two thousand and twelve she had continued headaches and memory problems which read knowledge by the commissioner's own consultant dr miller opined that she had problems with attention concentration and memory and that these would likely interfere with her ability to maintain a regular schedule because of her memory deficits and dr miller the commissioner's own examining consultant recommended a further exam regarding her cognitive problems which are caused by her traumatic brain injury and even concluded that she would need assistance to manage your own finances when he examined her now in addition before the hearing in two thousand and twelve her treating physician primary care doctor dr north determined that she was permanently disabled by her clinically determined back pain and this was supported by an m r i at it there was a second m r i that showed some stabilization and one of her i believe l five has one did not develop the record he did not order a consultative cognitive exam recommended by his own consultant and he did not ask dr gone her neurologist or dr north for more evidence that would cause the pain to get back to a question this is a different keys were she was initially determined to be disabled yes but now you're still talking about her describing well that was the basis for disability in ninety six two thousand and one or two thousand and six right it was in two thousand and six in two thousand and six the l j correctly found the the line from which you would have to have improvement included her failed  back syndrome and she was able as she he had to determine whether she was now improved enough from both her met her cognitive and physical impairments to be able to work in two thousand and twelve and that's that's one prong of why i think the commissioner to meet their burden and then of course we have the fact that we fast forward to two thousand and fifteen and it turns out the reason she couldn't walk the reason she had it that she couldn't stand that she had severe pain that an earlier examiner found was not credible could it she had severe bilateral peru peripheral vascular disease and that disease causes pain in the legs inability to walk and trembling in her hands and numbness and this is new in material evidence that is retro active or retrospective to before two thousand and twelve she had been complaining we have to consider that evidence in order to come out the way you want us to know no i think we have enough just based on the record that the commissioner did not meet the burden that she had improved enough to be able to work and we also have to look at her obesity and other problems but with her cognitive problems the ail jay did not consider those he found that she could do light work even though she had testified and dr north said she can't she's limited in walking and standing and he found she could do light work there is not so we can set aside the i understand we can but i think if you don't find that's enough that the new evidence clearly supports her credibility and why she had so many problems walking and the physicians assistant who missed diagnosed her who said she has no  neurological problems that would cause as they don't realize that she had peripheral vascular disease i just go back to the two problems you did make a fine verity of the claims mental impairment does not need does not meet or medically equal the criteria listing twelve point zero two probably the wrong listing and it may not meet the listing but you still consider that as a non exertion a limitation and you would need a vocational expert to say a person who doesn't have the memory to regularly have a regular schedule can they do any job in the economy and i think the answer is no will sit down and three minutes for a a condition improved such that she was able to perform a range of unskilled light work during the relevant period from january tenth two thousand and twelve when the found she was no longer  previous allow and when she was found to meet the listing for epilepsy and found that her seizures had been brought under control with medication during the relevant period with regard to her b leave them what i'll call the the better co sorry the mental neurological issues your adversary's suggests that there was some evidence of memory loss or memory function case for us to make this determination whether she's made this improvement enough to remove her from disability payments we have to look at her situation her medical situation psychiatric condition when she was granted disability record here do you have summaries from hearing officer and from dr hoffman that summarized what was going on there with the previous i q scores it is apparent that they contributed to a previous allow and i think what significant here your honor is that we see ms hathaway's mental functioning during the relevant period and fact she was able to work iraq i believe the case was cited but not specifically for the argument that the fact that the previous records were there had been a lost folder at some point i do not believe was raised as a specific grounds for any man and in order to determine whether medical improvement has occurred yes or same as compare the current medical area of the medical  perform unskilled work during the relevant period here she has in fact at the hearing testified that her back impairment was the thing that w keeping her from working she didn't deny that she had been able to work as a teacher's aide notwithstanding whatever mental limitations she may have experienced she didn't allege that that was an issue that ever stopped her from miller as these you know mentioned seeing that her mental impairments were not significant enough to interfere with her daily functioning dr hofman reviewed the full record generally indicated she could perform them and the correct listing under which to analyze the traumatic brain injury under the regulations and that's the way did not meet the paragraph criteria in terms of her daily activities her social functioning her ability to seen sustained concentration many of those seem factors actually translate over into the adoptive functioning requirements to meet listing twelve point zero five adoptive functioning speaks to a person's ability to engage in d d day activities interact socially the stina job and the algaes decision speaks to all of that so even without mentioning twelve point zero five explicitly i think the l g is decision really makes abundantly clear why ms hathaway would not meet the requirements of twelve point zero five and moving on a almost a full two years after the relevant period and did in august if twenty fifteen he and it's had to be the argument essentially is that this subsequent diagnose says retrospectively shows that might have missed the way did not actually improved during the relevant period which was approximately ended approximately two years earlier  is not warranted here for further consideration of that subsequent diagnosis in part because there is no evidence showing that that diagnosis dated as far back as the relevant period no doctor who diagnosed it ever stated that it dated that far back and even if the condition had begun to manifest in small ways during the relevant period the record shows of subsequent deterioration of that condition such that the medical records and the diagnosis from after the relevant period can not speak to ms have the condition during the relevant period we really see very different clinical findings and also you could she could introduce that is evidence of a new application to cover the period she certainly can she has in fact filed a subsequent application with an alleged to a few days after the date of the elegies decision it was denied at the initial level but it's pending now and hearing before another l j and so she will certainly have the opportunity to introduce th at another time ok so with all of that substantial evidence supports the commissioner's decision that medical improvement occurred during the relevant period and the way he was able to perform support their case or non examining consultants they get essentially no way when you are when you look at examining doctors or treating doctors there is an issue of whether but she did testify as she continued to have seizures and that the l g should have consulted with her treating neurologist about that and her memory problems which are well documented by the i q test and dr miller's own observations will affect her credibility the judge discredited her for some minor inconsistency in her testimony so i think that there was not substantial evidence if you look at everything to even discredit her that she was testifying as of two thousand and eleven two thousand and twelve that she could only sit or stand only stand her walk for a few minutes she was using a cane she said said it was prescribed and dr north supported that testimony found that she couldn't do the sitting or standing they did not attribute it the vascular disease but later on when treating the vascular disease dr pap's the surgeon noted she'd been having these problems for six years the l g a noted that she could do some activities of daily living but if you listen to her and read her testimony she needed help from her husband she had detroit working in two thousand and four with the record shows she worked in two thousand and five and she worked i think  what ninety two dollars in two thousand and six but that at that point she was found also to be disabled by her back condition and it's uncontested that she was unable to do any work after two thousand and six urged the court to find that the commissioner did not meet her burden but if you find that somehow the commissioner met the burden to show my client could work then we have to not meet her burden but if you don't find that i would ask that you remain and for consideration of the will vascular disease thank you thank you thank you mr snyder thank you both well reserved decision