marie go on who is the claimant here this is also a social security case it's both a medical improvement case and a disability case ms gaunt is a young woman who went through a catastrophic auto accident in two thousand and eight she sustained a traumatic brain injury in that auto accident combined with some preexisting mental health problems that she was experiencing at the time that led to the original decision that she was disabled under social security standards social security has been trying to decide whether she continues to be disabled it had before it a number of n psychological examinations there was one examination which the administrative law judge deliberately decided to give no weight to not little weight but no weight that's one of the issues that we are focusing on now  and also there was evidence in the record about ms go on to continue doing problems with headaches and inability to concentrate the mishandling of this evidence at the administrative law judge hearing has contributed to problems st there's an incorrect comparison of the musical on its current condition with the condition at the time of the disability decision was made on a nd there is an incorrect assessment of her residual functional capacity at the time of the hearing on that incorrect assessment led to the hypothetical questions being phrase for the human to the vocational expert leaving out problems that her mood disorder imposes on her ability to work and leaving out her need for breaks and quiet time if she suffers from headaches so there are two basic problems one with medical improvement the other with current disability to look at what was disabling in the original decision the most recent decision is being used for comparison  matic brain injury being assessed in the context of a pre morbid on a psychological history significant for depression in p t s d mentioned by the administrative law judge and his decision on and there are just one prior to the accident was poor that she was homeless that she was count serving that she needed extensive family support in order to deal with hassles and stress and then on social security makes the decision that combined with the effects of the traumatic brain injury this is what justifies disability a lot of preexisting problems that my client was experiencing at the time and that was when watching it with that assessment was in two thousand and nine the accident was in two thousand and eight and sell what has to be found now as a take off point is you have to compare our medical condition then and on the cutoff date on that update which is in two thousand and twelve has to be a change in medical condition there has to be did make the comparison although as we point out the l g a used the wrong date for the initial comparison but aside from that where did you make the comparison on the comparison is throughout the decision although i i will say this the administrative law judge spent more time dealing with what he viewed i am not here you can just be fine i'm sorry the administrative law judge spent more time dealing with what he viewed as the current medical conditions by the time social security made its initial decision there was not much physical limitation that factored into she then in a terrible car accident she lost her baby but she was on her way back so far as physical disability and throughout the site think we've been dealing with the idea of limitations to sedentary or light work and that's discussed by the administrative law judge right near the end of the decision on whether it's sedentary or light work but the point being that when you're looking for evidence of improvement from two thousand  on to the time the administrative law judge selected what you really see is not much physical improvement there really doesn't factor into it but what you do see is a failure to went through a number of neuro psychological examination the examination that's principally at issue here was done at about the time of the hearing it was to the effect that if somebody is having trouble with depression mood disorders and has had a t v on that the t b i according to literature and according to the doctor's examination of i'll try to stay away from the code as best i can your are trying to stay away from the code the chromatic brain injury has continuing affects on somebod ability to recover and adjust to various things going on with her including mood disorders so what this neuropsychological examination said  have looked at prior examinations my results from testing are about the same as the prior results i need to call to your attention that there is this continuing problem with and that was the examination presented to the administrative law judge the most recent one and that was the examination the administrative law judge said i will give this no wait yeah i had trouble true i won't believe anything else that dr jerri puts in there in terms of mood disorder and so on memory and so on and then dr jerry writes a letter later letter he gets really mad like you can't you read or do you believe me administrative law judge to say i'm giving this no weight partly because of the testing results the response to that he is that he has a reason for throwing out the earlier neuropsychological exams too so would dr jerry he says having these testing results is fully consistent with the other things i'm telling you yes that's exactly the way that that exam is listed which means that the st reason other things that may also be true i would put a little differently or honored that on the administrative law judge did not believe that what dr cherry had to say about the effects of traumatic brain injury taken at face value or accepted that is one of the things that we think constitutes reversible error that what we would ask you to do is to send this back to the administrative law judge to the administrative law judge properly can evaluate all what's going on with the mood disorder because what the administrative law judge left himself in a position of doing was focusing on this as if it were mostly about cognitive impairments experienced by ms go on and whether or not her test results on cognitive testing are improvements from what they would have been at the time of the accident and that's not what dr churi set out to do that's not what the earlier neuropsychological examination set out to do either this is an issue where what is disabling form is go e what's disabling from is going on is difficulty getting along in the workplace off respiration losing concentration and also the effects of her headaches so by saying no wait to d cherry the administrative launch took the position where he did not have to factor mood disorders or headaches and the need for breaks into the hypothetical question he ultimately asked the vocational expert that hypothetical question was focused only on what i will call cognitive impairment problems the need to have the type of work where there are one to three step instructions and not in there at all he is anything to do with need for supervision to be careful in the workplace need for getting along with  coworkers need to take breaks need to be what dr woods described as being in a quiet room and alone and able to recover from the headaches ok now you're down to a little under three and you want to save the morning it may have please the court and christopher brackett on behalf of the commissioner social security and from what it sounds like the courts questioning its concern is really with that opinion of dr cherry and none of it but i'm also concerned with the question of whether and furthermore don't claim is treatment records reveal no clinical evidence of significant mental impairment related limitations that's not a comparison so where's the comparison the comparison occurs over the course of the entire decision it starts off discussing the comparison point decision and the impairments that were considered then and then the impairments that the claimant has now and then l j makes this finding that medical improvement occurred and then as we progress through the decision it shows his medical analysis analysis of the medical evidence analyze the medical evidence of now but he's not really comparing it to the medical evidence from that well he is considering the evidence that is available now and back then and starting basically emmy's considering evidence back from t million ninety two thousand and ten the evidence that led up to the comparison point decision the evidence out followed now there was very little medical evidence that followed the comparison point decision we had a handful of counseling sessions scattered over three and a half year period then we had a neuro psych a psychological evaluation from dr fuller in two thousand and ten where you've made largely north found largely normal findings that their words really no mental limitation on working and we had the dr holidays opinion in january of two thousand and twelve where he said that her mood disorder is only mild p t s d is mild and resolving and he found no barriers occupational functioning and none of those  reduction in limitation in the reasonable functional capacity and the initial finding was that her residual functional capacity did not allow it to sustain concentration and persistence based on these the t no opinion as a specific limitations that misc a lot might have his summary was basically that her most disabling limitation now it's unclear whether he was considering disability in the context of social security versus some other compare the workers compensation or eighty eight or something along those lines but that's not that doesn't play fully into the reasons why the decided not to give this opinion weight that comes on page thirty eight of the supplemental excerpts of record that and how that effects are functioning so st you know it's that neuropsychological testing the measures of the cognitive functioning were largely normal she had average academic and intellectual functioning and that was consistent with the earlier evaluation references which was dr fuller's evaluation in two thousand and ten largely the same functioning as after a battery of testing nd dr cherry reported no clinical observations in support of the opinion regarding claimants mood issues that's where he starts to get into the mood findings in dr dr cherry's actual examination most of it consists of these these testing that addresses cognitive functioning but he makes very little in the way of observations of her mood functioning he does not perform a mental status examination he records the claimant's what the claimant reports to him and what the claimants mother reports to him but basically he's only observation is when  mood was good at that time she was appropriately sad when discussing elements of loss like her car accident and those those challenges that she had back in two thousand and eight in the rehabilitation fact support mood disorders well st st of all earlier on the jade does note that depression such affective disorders can result from a traumatic brain injury but the l g a points out here that it's not her th l j points to dr cherry's opinion was wholly unsupported by documented clinical findings from the treatment providers now since a comparison point decision as i mentioned earlier there's just been a few counselling sessions typically these these arose in context of life stressors she miska lot was at odds with her parents in january of two thousand and ten over who would be her representative payee and went to counselling over that to have someone to talk to in september of two thousand and eleven her last treatment session before the sation she was feeling the stress of being a new parent and it was coming up on the anniversary of her accident you know these are normal situations that would exacerbate a claimant's functioning and even in these circumstances there was very little objective findings that would support the disabling mood disorder and th point to the absence of any supporting objective in clinical findings leads led the l g to conclude that this opinion was largely based on the claimant's subjective reports which all of this and this is at least in my experience in terms of the cases i've seen an unusual one because here they're trying to take off and my understanding is that the hole in else is that you're making goes to whether she that the take off point being that there was a change and that's what's really medical change and that's what you both you both the l g a and you are not doing very much another words maybe that was a weak case to begin with maybe she shouldn't have got maybe but what is there about what the circumstances were found to be in two thousand and nine and what they're found to be now and from i apologize it's page twenty seven of the supplemental excerpts of records it's a finding of fact number two the l j goes through the what resulted the comparison point decision and why she was found disabled would be unable to maintain adequate pace and persistence on a consistent basis and i'm sorry to mess this up i've got to give me the page number again the supplemental excerpts of record page twenty seven i can try and dig that out of the appellant's excerpts impairments and how they affected the claimant and that she was unable to maintain adequate pace and persistence on a consistent basis unable to adequately cope with the routine stresses and hassles in the workplace so he  thousand but there is no comparison well i think the comparison is in that lays out in the decision and how these findings are presented and shows that her functioning now or functioning as it progressed was different than it was at the time of the comparison point decision but again i thought that the functioning is secondary st is to find a medical change but i think the met at the medical the lessening in severity of the medical  not here as far as i can tell well even even your honor when a decision like this is written with less than ideal clarity that the comparison can be drawn from the from the decision as it's written out hope holistic and i think that's really shown in the discussion that follows there is a dual functional capacity finding because he doesn't limit the algae doesn't limit himself to simply what's happened since the secession date he does address medical evidence what little medical evidence there was that was derived during the period of disability and this is it shows a timeline of progression as as things as are impairments resolved and i was things improved over the course of thirty three years and  three odd years claimants cognitive functioning improved sufficiently that testing showed very little limitation and that her mood disorder improve sufficiently that it was just a mild by that i don't know what the letters stand for it's more of the code if you will from these medical care you can help me with the code i can hide this alphabet soup that we often see in these cases it looks like it's a summary of the claimants i can't tell i not helpful in that regard your honor and i apologize i maybe i was i don't tell us but where it says that patients adapt a skill development is indicated in the following table right and i'm trying to figure out where the information that produces that table is coming from the because the st sentence in the paragraph talks about the mother there's a suggestion that based upon the mother's information but that's only a suggestion based on when the paragraphing i'm so i'm trying to figure out of this is based on something other than what the mother says yeah as far as i can tell it's just what the mother says i mean that that's i mean i would be a reasonable interpretation of that and well it would be a reasonable interpretation unless somebody could tell me what the code means right later on that same page we've got diagnostic interpretation yes the current neuro psychological test findings done and so that is that what follows  coming out of the testing not from the mother as we go through that i'll just cherry pick a little bit in the middle of that sort of paragraph at the bottom of page eleven evidence t consistent pattern of subtle attention deficit at the end of that paragraph she evidence to another words this is coming from the testing this is not her sort of self reporting is not the mother reporting a relative weakness with regard to  low average range performance and attention concentration the next page borderline range performance one measure of auditory working memory one measure of sustained attention nd measure sustained attention no we've got clinical psychological testing as he has doing as a professional testing that showing these things i don't see how the ail jay can be justified in giving that no weight because the way the l j says there's no way to because it's inconsistent with the testing well this is this is what the testing shows this is a professional evaluation a drug diagnosis based upon the test the court unfortunately i can't solve the acronym problem either as far as what the testing stands for but i can speculate about why it follows the analysis of what  my client's mother was talking about there are sometimes reports in the reporting function reports that are classified in terms of test results and that's  wrong the more important thing is that there is very little of the ministry of law judge decision aside from the passage on  difficulty concentrating and on depression on that actually describes what her situation was like at the time she was found disabled so there is very little analysis in the opinion of improvement issues there's there's simply not much there what is there is as if this were a st level decision simply describing what her condition was like at the time the administrative law judge was evaluating things at the hearing that's what this is about and so it leaves out the step of finding improvement and so that is a reason did what before we brought this case went to court she stopped getting benefits i believe during the state agency process leading up to the hearing with the administrative law judge ok and she's now so if we sent it back she would still not be getting benefits presumably and we would be arguing about medical improvement and we would be arguing if necessary about current disability i'm sorry we've been arguing about current disability i would say both at the time of the hearing and now it would be back before the all j and one would hope he would take better account of the improvement analysis and of the mood  in the next set of proceedings there are no further questions the red light is blinking he says yes thank you thank you very much both sides versus burial submitted for decision we've got two remaining cases will take a ten minute break and we'll come back for the last cases