as reservations and reserved in ways reserved here in for the bans in when congress acted statutory tax pertaining to those same lands in the eight hundred and seventy dollars referred to them as the reservation in those lands reserved in the decision enough tali is that reservation reservation analysis begins with the text of the text of the treaty and that can be read in light of the tree the history of the negotiations in the in the withdraws the land from the public lands dedicates them to the settlement of these ends of indians there after your honor refers to those tracks of land has the aforesaid reservations and is and is land the supreme court has found allotments within reservations time and time again to be perfectly consistent with reservations so there can be a lot of it without reservation d or outside reservation yes your honor in in now as i understand reservation if it would imply that there's a government from the from the tribe that controls the affairs of that piece of property it is that is that your understanding yes decades after that tree was signed where there's actually some evidence that the tribe was exercising any governance over this land that you try it now claims he's a reservation or was a reservation designated by eight hundred and fifty five i see i see references to the word reservation in a lot of different documents but i don't see any evidence that the tribe actually was doing any governing of bands were were still operating with tribal governments many of those those letters to said the secretary and the indian agent were written on behalf of the tribes where the st signatory would be the chief in many references to know this chief band in this particular area so they very much retain their their traditional tribal governance structure and of course when when when after these bans were were  gerd has recently said was what was required to find track appropriated to indian purposes and that's what this treaty did it included not only specific language setting it apart for the bans it included textual provisions for individual men donorship or restraints on elian ation agricultural assistants in other textual hallmark arguing that not required for a reservation is that it is not your federal superintendent is a trait shared by all three all three categories of indian country under eleven  not or the federal government has not taken explicit action to reserve or a lot yet still may intend the land to be indian and in that case what is required is an assertion an active manifest assertion of federal neither the supreme court nor any federal court of appeals has ever applied that test to a reservation determination under the definition set forth in the dirt or to an indian country definition indian country look at united states these and of all what you will see them looking for i have two federal superintendents the court looks to the indian agency reports it reproduces eight or nine of them where the indian agents are actively tending to different from federal involvement if you have a kind of an indian community that was not a reservation or if you have a system of far indian allotments there the that that that would involve those these lands like they do reservations they were distributing in nudies there they were assisting with agriculture there were inducing the indians there were they were assisting them with their agricultural pursuits they were removing intruders from the indian land at the indians request all things that you do within the protected boundaries of an indian reservation all the while a spouse in statements like this agent fitch who was at the treated oshie asians filling their treaty stipulations on their reason your honor is that of the reservation concept the eight hundred and fifty dollars s was about civilizing the indians to turn them into american farmers in central to that was the notion of individual property ownership that was the central organizing principle around which the the whole concept of the reservation at that time  reservation status and what mcguirk says is that once a block of land is set aside for indian reservation no matter what happens to the title of plots within the area entire block retains its status until country notwithstanding the issuance of any pat your honor that assumes individual land within reservations in the district court when it reproduced the indian country statute sections a b and three it eliminated that language notwithstanding the issuance of any patent without indicating that it was doing so moreover in two hundred dollars pages of briefing the defendants have not spent one word of argument reconciling their theory of the case with thing be ownership of land even by nine indians is not inconsistent with reservation status treaty with the chippewa at issue in the supreme court's mill x case and his in the eight hundred fifty four dollars treaty of a point at issue in this court's decision enough palate if all three of those cases of the supreme court in this court recognize those two those treaties were created permanent reservations and indeed the defendants have held them up as models permanent reservation status yet each provided for allotment and each provided for the eventual issu be addressing why the district court held that the eight hundred and fifty five treaty temporarily withdrew unsold public lands from sale and was not understood by the initial bay bands who signed it to create indian reservations mr boulder is going to be addressing the indian country test and maker in more depth and mr garrett is going to be addressing the cross appeal face with the threat of removal by the federal government these bans sought shelter in state jurisdiction they spent years becoming landowners and state citizens part of a larger strategy that they repeatedly documented in writing but the tribe now claims that its ancestors abruptly abandoned that shelter and state jurisdiction in nine hundred and fifty five dollars by signing a treaty with the understanding that they would be presidents of an indian country indian reservation understand federal jurisdiction then record does not support that impossible theory the district court's decision must be affirmed because it correctly applied malakas the controlling supreme court precedent on interpreting indian treaties the district court also correctly applied the indian country task articulated in us v john and affirmed in citizens band which requires lands to be set aside for set apart for indian purposes subject to federal superintendents further the district court engaged in a detailed analysis of the text of the eight hundred and fifty five treaty and conducted a thorough review of the record to understand the treaty from the initial navi bands perspective an eight family the district court properly recognised that the tribe as the nonmoving had failed to demonstrate the existence of a material fact requiring trial which is why a crank defense motions for separate judgement the tribe makes an unconvincing attack against the plain language of the treaty st it isolates in places unwarranted emphasis on the phrases tract really or tear and aforesaid reservations claiming that they refer to an indian reservation but the word reservation has never been use solely to mean an indian reservation equivalent to indian country under federal law like let me ask you about mcgurk decision there was a reference to ups an act of congress from eight hundred and seventy years where they used the word term of art in the eight hundred and seventy s trees better evidence in this case i be if i understand correctly the passage you're referring to your honor what they actually cited was more language from the treaty not just the term indian reservation and they did not say it wasn't a term of art in federal law to the contrary mcgirt actually says that that federal law at the time did not give the term reservation the same import that it has today and so one of the biggest challenges in this case is understand that the documents we read are written in english but it's a language that's not spoken in exactly the same way we speak it today today we know what indian country is because eight because and fifty one defines what indian country is there are other definitions back that and i would point out that the hitchcock case on which the tribe relies actually is not articulating the test for indian country if you look at the eight hundred thirty and intercourse act which is the backdrop of both of the treaties at issue and hitchcock it actually has terms that mean all the elements of the test for indian country that in the words of u s republican would have segregated indian lands reserved from a session from the public domain so what we are seeing in mcgurk is a supreme court that has looked at the text of the creek treaties seen all the hallmark language of creating a reservation and and thirty s forty's fifty's sixty's and said we don't have to go through that three part analysis because we know it when we see it and in fact none of the parties disputed that those treaties had created some four to form of indian country they focused instead on which type of indian country have been created based on the faulty premise of the tribe advances here that there is some different test for an end in reservation vs a dependent indian community there is only one test that test w indian country or or no form no form of indian country your honor in fact it temporarily withdrew land for the sole purpose of allowing indian land selections and that's the  for indians to select the land but but the contention of your client is that that was not to be in the country in fact the land was not set aside that is a different type of term of art instead it was withdrawn from say oh that's a temporary status for the land and we know it's temporary because the article one of the treaty specifically identifies a one year period to create less followed by twenty five year periods the st to make land selections on the nd to purchase lands and at the end of that time all the lands remain the prop that were not selected or purchased remain the property of the united states and were subject to disposition like all other public lands that's how it is not what about the land you allotments that went to as i believe there's a provision that says at the end of the ten year period the president would actually continue to hold the land in trust if the indian was not deemed to be competent  certificate with a restriction on elimination it may have had some federal superintendence it was never intended to be permanent because even the restricted fees certificates that were issued under the treaty guaranteed what the treaty called ultimate title and in fact there's a distinction between the certificates that are issued under this treaty and certificates issued under other trees like the eight hundred and sixty four nd on treaty where the treaty actually created classes of indians who  either deemed competent or incompetent here i think the issue is ultimately moot because there are no certificates outstanding there are no lands that remain content that continue to maine remain withdrawn from sale and there are no more restrictive fee lands out there at all these indians obtained after significant hardship they had taken the patents promised in the treaty and then the other lands were disposed of i see that my time has  the land in the years after the treaty and i'm asking you what is there any evidence of the state governing the land or they have what i want for instance other criminal prosecutions of anyone by the state and this orton's land immediately after the treaty rival prosecutions your anything to indicate which government was controlling the land at the treaty yes your honor local governments were formed they imposed taxes on the land that's part of the sad history of land lost for the tribes ancestors you have local officials who are there governing the land they are writing to the states on behalf of band members seeking some sort of intercession there what you have is also a complete absence of federal superintendents and i don't mean that this is not blacked i mean that in the eight hundred and eighty s when the united states was compiling tables of indian reservations in michigan and in other states and territories all of the areas described in article one are missing but the reservations described in the eight hundred and fifty four dollars treaty at issue in the natalee case are there and the reservation described in the eight hundred and sixty four dollars saginaw treaty is there plus two additional reservations that were effectively trust lands these lands are not there you have state jurisdiction yes there are prosecutions there are also appeals to the state to assist these members of these bands the state run schools they're there there is no evidence of federal superintendents and i'd also like to draw distinction here your honor between the tribes and their ability to govern their people versus superintendents  land because it's the land itself that's critical that to this question in this case if this is an area that's a reservation you would expect to see treaty language like the language in the creek treaties that issue mcgurk where the states jurisdiction  excluded there is no language in the eight hundred and fifty five treaty excluding state jurisdiction and where the federal government says if the state or in that case also a territory attempts to intrude on tribal governance we have the united states will exercise our military might and remove any intruders and ensure that you continue to exercise your stiction there is no such promise in this treaty the language here is very different and i would say i realize that the idea of allotment is easy to talk about those words do not appear in this treaty this was never an allotment treaty and mr jim contro any and i say this with all due respect because i do enjoy litigating with a he has jumped his claim he wants the court to focus on disestablishment and diminishment cases but in all of those cases like in mcgurk there is some agreement that whatever the basis for indian country and executive order a treaty a statute in indian country exists that did not happen here and because there was no common land holding common land holding created in the eight hundred and fifty five treaty there was nothing to a lot the language of the treaty itself calls these land selections and that's what they are not allotments so you're indicating the treaty itself has to create some common land ownership by the tri landholding that is actually divided up could the united states actually go to a separate scott here is an individual that effectively a trust parcel for an individual yes but that would actually have to have evidence of the united states holding the land in trust in some form that's documented that's not what happened here instead you have band members who acquired lands before the treaty and the treaty assures them of those are their lands then you have band members who select lands those lands are going to be patented in feet not restricted patented in fee within ten years then they are allowed to acquire lands under the treaty those lands are never restricted those lands acquired in the nd five year period are patented in feet immediately and then everything else that's remaining is the property of the united states and the united states has full discretion regardless of what an indian agent may or may not recommend but the united states has full discretion to dispose of those lands like all other public lands making them subject to entry and purchase under the public land loss that's what this treaty does there is no point in time where  have this land that is set apart for the exclusive use of the indians that's not happening under this tree because the areas have already been settled and there is land that is freely alien about by the indians throughout the period of time that the treaty is in place and that that land is under federal superintendents it's certainly not in the design of this treaty and that's what congress was reacting to in the eight hundred and seventy s acts in the s acts congress says what are the deficiencies here and there were many the chief the fish and sea was indian agents had failed to issue the patents the patents promised in article one it takes three tries for congress to make sure the interior department does that but they do not continue any patents with any restrictions on the alienation that's what's promised in the treaty and that's what's actually done we know it's actually done because we have patents in the record in this case and you can read them they have no restriction on a n so there is sort of a hypothetical question of what might have happened if an indian agent had reserved the restriction and alienation recommended to the president it just never happened and before it could have happens later and yes nobody understood that this would actually put the band members at risk of having their lands taken from them but it's the treaty that dictates happened what happens next and is the understanding of the bands in eight dollars that we have to respect today it's only through hindsight where we had time to look back and change the deal so it's a better deal that you would have a tribe advocating for reservation there is members to the best of their ability under difficult circumstances they had a strategy they wrote to federal and state officials repeatedly outlining their strategy and they actually executed it and you see that in the text of the tre itself so if you go beyond just the two phrases that the tribe wants to read in isolation and you look at the the history surrounding the treaty and the understanding of people like acid on a these are people who asked for patents they asked for a strong title good title and it took time but they got it and they're bet that this would keep them from being removed from the place they felt connected to at a spiritual level it had hardship but they succeeded they are here today because of the bargain they struck an eight hundred and fifty five dollars and that's something that nobody should want to do that's a history of which they can be proud that's a statue in which only the tribes expert spoke to a committee of congress in which the tribes lobbyists and other advocates actually did not inform anybody that they would claim an indian reservation the tribes test for the creation of a reservation articulated by the supreme court in one thousand nine hundred and fourteen of the public in case remains the same land validly set apart for the indians as such under the superintendence of the federal government over time what liquor and regulating who could enter land reserved from session was dust indian country and was under federal superintendents through digital interpretations indian country came to include reservations created out of seated land and in all represent the types of land holdings that satisfy the same three part test that us the john did apply to determine if a reservation has been created set aside indian purposes and federal superintendents the most critical difference between that three part passed the test suggested by the tribe is the element of federal superintendents but is then judged gorsuch recognized in the th circuit's hydro resources case federal superintendents is not inherent in any set aside of land for indians as judge gorsuch wrote quote land simply conveyed to individual indians or phys that they are then free to use for non indian purposes or sell as they was some superintendents would you agree for the for the parcels when they were given to him that there is a pause of the ongoing sale of land that had already been occurring in this area for a five year period simply for the individual indians to be able to make their selections but that is not you know federal and superintendents over the entire area of any lasting character and  superintendents i mean if you look at it as superintendents over each parcel of land sure it's not super and it's over the land in total what we're each parcel why doesn't that satisfy the superintendent's requirement for creation of restoration well even assuming that it did we don't be talking about ten to fifteen percent of the area claimed by the tribe because that's all that was actually selected by the indians at that period but we don't really do that parcel by parcel analysis here we're what the tribe is looking at here in arguing is that the entirety of this two hundred and sixty thousand acres that was temporarily withdrawn becomes a reservation well the federal government only the only individuals allowed to make a purchase during that time but it's really no different than public domain land that you know others can purchase it at different periods of time simply limited to who can purchase it but it will be after that five year period the others versus after the five year period others could purchase yes i guess what i'm having trouble with i mean it seems to me there probably was some period of superman and it's here but you know it for  superintendents which then goes away at some point for some reason but you could still have a reservation i certainly think congress would be within its rights to create a temporary reservation and the federal government would be within its rights to do so i mean after all you  permit reservation at a temporary superintendent's only went for some period of time and at some point the federal government decides the reservation doesn't need superintendence import that you still have a reservation at the superintendent's goes away no and particularly here where there is not contemplated continuing federal superintendents i'm not aware of any case in which there is no superintendent's continuing whatsoever even if you look at the diminishment cases we st found that a permanent reservation established in most cases where is here that was never the aim of the treaty the aim of the treaty here was to have land essentially deeded to the individual indians to be under state jurisdiction and so you see that evidence of state jurisdiction even in the treaty journal where there is a discussion of the land is going to be subject to taxes well that's not federal taxation because there isn't any time that is that is state property evasion and taxation by local governments and then you see that as well even after the creation of the or the ratification of the treaty or you have some land that is in fact  intervene because they have a very serious interest in this case where i'd like to begin is by stressing a point the miss levine made that i think bears emphasis and that is this none of you indians wanted a reservation they didn't want one they didn't negotiate one and they never believed they had one and that's why i would respectfully submit the judge clay did not get straight answers to two questions that were asked the st was what part of the treaty creates a reservation you didn't get a straight answer because no part of the treaty creates a reservation the operative language in the treaty is the grant of land to each indian section that gives to each out o and chippewa indian selections of land that's all the treaty did that's what the tribes understood at the time if you look at the treaty journal it's absolutely clear and i would just cite page forty two dollars of mr jam patrol news brief cites two statements by two they also said they wanted titles the way the white man had it wanted patton so he cannot find a single statement from any indian that said they wanted a reservation as opposed to actual title to individual lands for men in its common ordinary meaning of the land selection that's how the i c c also use that d term and that's how judge maloney also used the term as just another way of saying that what this treaty did was it gave indians the right to select individual and lands for ownership in c and that's all this did and that's all the indians believe that it did which brings me to the other question you asked judge clay to which i don't think you got a straight answer which is why did it take the tribe so long because they never thought this created a reservation they didn't think so at the time and they didn't think so a century later in one thousand nine hundred and fifty when they filed their proceedings with the i c c the purpose of the i c c proceedings were to  this tribe for this land that they ceded in eight hundred and thirty six and the i c c focused specifically on whether anything was given back to the tribe in the eight hundred and fifty five dollars treaty that warranted and offset the i c c analyze that treaty and determine that it gave the indian tribes nothing nothing that warranted an offset of one penny that's why they didn't get an offset they prevailed and that's finding r s them from bringing this case for two reasons number one a court issued a ruling and they're barred by race judicata and number two they specifically took the position that there was no reservation at least implicitly so they can't now say that there a source of law stating to the contrary that said there is preservation did establish commonly held properly property when it reserved it when it set aside lands or the bands and thereafter provided for forty acre lots in sixty acre lots within the tract reserved for in the band reserved for the band with whom to which he may belong that's in the text of the treaty it set aside land specifically or the ban met in a lot of them to the individual indians in terms of federal superintendents and federal jurisdiction your honour's in our briefing we have set forth documentation that is in phat these indian agents were exercising federal jurisdiction not only over the allotments but in the open on a lot of the areas removing intruders and so forth and in it to answer judge bush's question yes you can have a reservation where federal a super superintendents exists and then it goes away is this court held in grand fairest man vs a united states attorney's office in two thousand and four that happened to these indians in eight hundred and seventy two when the secretary of interior illegally withdrew the federal the federal trust relationship and that was based on what what this court called a misreading of the treaty and it set the bans into a wilderness of  examples of state jurisdiction are illegal taxation that big that became took place what she called the sad history that took place after secretary delano withdrew the tribes protection based on broken tree promises and fraud and and the like  interference and retaliation both were dismissed on summary judgment and opinion in which the district court took a lot of the disputed material facts and looked at them in the light most favorable to themes and as we go through today  i hope that you always see the reason that this opinion shapira verst so that it can go forward on its merits for coaches kentucky civil rights act disability discrimination claim she presented sufficient evidence of a disability judge but children in that case involved a methadone clinic so of the asli the people going to the clinic even though they had in a pair meant they had no history of addiction they were trying to get better so the entire goal substantially limit major life activity however the fact that they were at the clinic in the st place and that they had a history of that and also that there is a good chance that the other side regarded them as disabled and that is similar here because amity coached ideally when she has the medication that she needs even though she has documented impairments she doesn't want them to substantially limit her  activities and when she unexpectedly lost access to that medication and she had one isolated week in which it did to densher late limit her life activities that is where the trouble other disability that needs if you have medication that takes care of the condition it's medication can take care of the condition my understanding of disability under the act which to the employer only in order became aware that she was disabled the point and a coach claims that she told steffi and wire beforehand but it's undisputed that once they received a letter from her medical care provider lemon which was before her terminations they undoubtedly knew at that point terminations being in process that before anything happened that had to do with the incident round the disability and this case we were in the midst of the incident that was caused by the disability and it's a so that kind of overlaps with how things would have a reason to know of coach's disability or if i think like we've pretty thoroughly touched on that roster says campbell is another helpful case there  if we want to go on to pretext there are basically just a lot of inconsistency is and  and when there's a competing evidence of the evidence is next then summary judgment is that appropriate so for instance same states that coach violated its policy but she did follow a policy had exit interview policy that refused to do an exit interview with coach it tried to keep referencing things that happened outside of the twelve conflict back period and ignore the fact that she had not done enough to be fired under their progressive discipline policy there's just several things in the record that shows that it was insufficient incidents to warrant her terminations and to question as if the reasons being dishonest is an acceptable way of combined with the panfish elements to pass the summary judgment hurdle before she showed up she didn't show up and this occurred numerous times and therefore under the policy that's the reason they are or what what what what evidence is there that that's not a legitimate reason for their having fired because they ignored parts of their policy that didn't line up with what they wanted they had a progressive disciplinary policy and her absences didn't meet the level of termination in addition they were supposed to follow up and ask for additional medical support if they didn't like linens letter lemons letter even specifically said the follow up with the had any additional questions they were supposed to even pay for another medical opinion if they wanted one regarding who she contacted she was permitted to contact stephy because she could contact either her supervisor department head or the head nurse in charge and stephanie was both the department head  when they are requesting notice and shout or cite specific circumstance with the example of a voice mail box is full meaning that that's an excuse for attempting notice and not happening that's kind of similar to what happened here with coach attempting to text and attempting texting but their reception didn't go through and attempting to call the reception didn't go through which is a communication problem on the employers and and is an exception that shattered describe no she did provide sufficient notice because of the exception she attempted to provide notice she sent a text her phone records also support that she attempted to call steffi the communication issue is an exceptional circumstance and if you look at tim's policies even within their policies there are exceptions so that is a disputed issue of material fact whether she meets all of those exception group l l c my opponent focuses on numerous factual discrepancies that they have kind of tried to highlight and and attempt to overlook or distract the court from the fact that there are no disputes of material fact those facts that that might affect the outcome of the lawsuit and here there are no disputes of material fact and you haven't heard any condition that is alleged to be the disability that is not considered a substantial limit on a major life activity sufficient for a statutory disability under the case the ira here the district court exhaust we're reviewing the record and noted that miss coaches medication did manage the condition you mentioned you're asked about whether or not teams had any knowledge of the medication not working teams had no knowledge of that mrs coach was taking medication for major depressive disorder let alone that the that the medication wasn't working or at the time  it is not what was the disability and this or the alleged disability in this circumstance here as miss coach notes and in our brief many times labeling us a major depressive work so i think it's important to the court separate out here two conditions that that miss coach may indeed have but legally speaking and for these claims that were more focused on here the war record of disability under the case the ira the district court correctly found that she had no disability and therefore she couldn't prove that she was regarded as  that impairment is referring to subsection one which is an impairment this abstention a women it's a major life activity and there's no evidence of that in the record miss coach is not presented personalised evidence of a disability as required by kentucky law how and the courier journal notes and the same thing with toyota manufacturing from the supreme court that the determination of whether a employee has a statutory disability under the a t a i or under the case you are a is based on personal evidence of how that condition may affect a major life activity of that individual here miss coach hasn't even pointed to what major life activity this condition is coach deals with and she has not presented those facts throughout this litigation despite having an opportunity to to do so  previously did at its site its absentee policies as the basis for the terminations and there's no indication that there was any sort of motivation or  assistant director of nursing both testified that they are not responsible or proper contacts for scheduling purposes they there are different hallways in this facility each hallway has a head and those nurses are the proper context for staffing and then if a employee does not call within two hours before the shift that is determined to be a familiarly for not complying with with a tense policy here miss coach simply didn't comply because she didn't agree with the policies she knew that she wasn't the post the cont a but she found that to quote her words asinine and so she directly contacted stephanie who is not the supervisor for for this purpose for staffing or scheduling purposes and there are no unusual circumstances in the record because two reasons one the cell service issue that we're talking about with with step  and forty seven nurse available that you can contact and get the the number for the admin nurse or the proper contact to talk about scheduling it's not as if this was a labyrinth of  numbers to pick from or look at all she had to do was contact the facility and talk to the proper person and then on top of that there is no unusual circumstances because  coach was physically able to comply with these policies and procedures you know she has the record shows a district court pointed out over the course of this relevant time period she sent received over seven hundred text messages and made nearly a dozen phone calls that the notion that she somehow was unable to do so is just simply not borne out by the record  discrepancies come in and when you're looking at other leave that coach wasn't seeking here it's clear if you don't call and you don't show up two of those automatic terminations and if you want intermittent f m l a leave you've got to comply with those standard calling procedures and the dio and the a t o and are not proper contacts for that and you know that's we think fairly straightforward here and not to interference or retaliation or anything of the sort for miss coaches alleged request recommend lately of any sort of disability or alleged serious health condition to put it simply dames did not know of miss coaches major depressive and the facility in the chair of the stephanie before that there is no record and coach's file there is no indication anywhere that james was away or that depression is the alleged serious health condition in this circumstance and their teams just simply did not know about it and coach has not developed proof that teams didn't know about it u steffi there's some dispute on whether steffi received that text but even if the court we assume that steffi received it it's not sufficient notice for it for if i'm a lay leaf it simply says  that i'm on a medication and it hit me hard and i can't get that medication that i had hit me hard on sunday which was three days prior to her sending that text message  doesn't tell anything about what condition she's suffering doesn't say anything about when she's coming back it doesn't say a thing about whether she's able to do anything it doesn't even request  any sort and so that the district court again found that even if you the court looked at it and said she did receive that text message again putting all inferences in favor of the  plaintiff assuming that she received that text message notice was still insufficient in her ethical i claim fails and so are f m l a claims fail because there is no notice she didn't comply with policies she hasn't provided medical proof of an incapacity and the employer tames did not have knowledge before making that the decision to terminate her on august th said there's no that she did not prove incapacity a period of incapacity for three consecutive days which is required under f m l a as part of the serious health condition various  subsections as statutory claims go but as part of her serious health conditions she alleges that she was receiving continuous treatment in order to prove continuous treatment shima show a period of incapacity which means inability to attend school or do daily regular daily activities as part of that that claim so now to your to your question  they are very similar to disability determination under the case the ira requires proof that she was experiencing substantial limitations on a major life activity  major life activity is any sort of daily activity can be working sleeping reading those things which is overlaps very closely with the regular daily activity that  incapacity requires under the f m l a so we would argue yes judge much that there is a lack of proof because there is no personalized proof that she was experiencing it and capacity or a disability in the record other than her saying she was experiencing it is it not enough that you just receiving treatment from a health care provider to have a  a regulations and statutes she must as in order to prove continuous treatment for the time that she missed work she must show a period of incapacity for three consecutive days that's the part that we are arguing she has not show is that period of incapacity which is exist separately but underneath a serious health condition they said that she violated the no call the show and an employment commission did not agree with that the way the no call the show policy is worded is it is grouped with  you're forseeable absences but there's a different section about absences that don't count against you so if an employee is sick if they bring in a doctor's note on their return date then that's non chargeable absence and can't be held against them and it says in that section that if you end up with too many non chargeable absences you should probably sit down and talk to your supervisor about what's best that can't co exist of the no call no should policy coach needed to bring in a doctor's note and she did that and regarding whether stephanie or just you have an opinion about whether they're the appropriate person to call on they are listed as people she can call and that they are her supervisor and the head of the department and for th a minute policy that mr right cited there is a qualifier of absent unusual circumstances as far as showing personalized evidence of major depressive disorder with his coach  and them testified that she was mentally incapacitated that she couldn't function and that she didn't feel safe to work with patients which is a huge deal and definitely shows that it was having a substantial impact on her work jumping over to a incapacity can also be shown for having a chronic condition such as depression which henson verses then contain the th circuit talks about and in that situation technically you don't even need a doctor's note so and we can't substitute our lay knowledge for medical knowledge fames had an opportunity to get their medical person to look at the situation and they chose not to and i believe that swanson that talks about not being able to substitute lay opinions for medical ok it looks like we have all of counsel ready i will go ahead and call the next case for our case number twenty dash five thousand three hundred and ninety three carolyn tipton versus commissioner of social security argument not to exceed fifteen minutes per side mr jones you may proceed to the appellant thank you doctor and one having city you with the bitter testimony but before i get to that i just want to briefly talk about the standard of review here because there's no just that this court is reviewing the agency decision poor whether it's supported by substantial evidence or not but i also want to point out that the other issue is whether there's also reversals repaired when there's an error of law excuse me and that is where most of the issues arise in this case so that this court is actually that rogers case that when there is an error of law that another remits logical disorder in both cases there was a treaty room at all just who provided support for the claimants disability d and in both cases the pinions from the rheumatologist were rejected based on case are even more compelling than those d in roger's case because in that case the l j relied on a number of not examined doctors including one if you was a specialist and who actually testified at the claimants hearing of muscular skeletal impairments so what i think this get said is that your was improperly substituting her lay opinion of what findings are relevant to the opinions from dr pracon when there is no contradictory medical opinions on those issues they consider the same evidence for to get to the point dr brackett stated that his opinions were based on a number of abnormalities including  pain management who also noted similar findings and even at points more severe findings including deconditioning to a point where she was having atrophy in her muscles  without having any on reasonable breaks absences from work again this is on a regular and sustained basis that the l g in this case discounted both the opinions from the treating doctor and the opinions capacity that based on based on a reading of the record when there is no evidence to the contrary so the defendant does say some cases that have helped that there to determine are see without a specific error he's only argued that evidence substantial evidence doesn't support the decision when actually in this case it does and that is the significant that is the the standard of a real that we need to keep alive in this case  in this case there could be but if the question is whether there is substantial evidence that whether the a l j discussed the evidence supporting his decision and whether reasonable fact finder whether reasonable minds can sign enough evidence supports that conclusion and in this case it does i would just wish rogers for ms rogers your honor honestly i am not familiar with the run the facts of rogers i don't believe i don't remember seeing that that the court does look at whether a both things whether substantial evidence supports a decision or whether there is an arab law i'm saying that council has an established in their law he has an argue that there's been an arab  and l j articulated sufficient reasons for discounting the opinion or not giving it controlling weight and that is really the standard that's required if the l g is not going to give a treating physician controlling weight they have to give good reasons  l j here did just that finding that other objective medical evidence in the record didn't support the limitations now counsel argues that they'll  suggest they all he wasn't looking at lab report and saying well this lab report doesn't show rheumatoid arthritis that's not what they all did here they'll jay look at that evidence is that yes it does dr bracket assess diagnose truman toward rheumatoid arthritis and proper mileage i believe as many of the impairments and they also found that those were severe impairment but they only looked at the opinion of functional limitation and found that the objective evidence didn't support the limitation not that it didn't support the doctor's diagnosis and that's where the difference i think here between what councils are arguing is that it's a didn't look at the  evidence like an m r i scan and interpret it differently than when the doctor did that's not what happened rather they all do look at the record of the whole including other other opinions including the state agency opinion and plainness statement significant to note that the plaintiff herself testified that she spent most of her time sitting that she could lift up to ten pounds both of those used considering considered her own statements and considering the opinion evidence doctor records opinion that she could lift five thousand pounds the state agency opinions found that she could do light work when the l j after considering all the evidence even all that evidence that came in after the state agencies there were you found that overall the evidence supported limitations not as severe as dr brackets but more severe than the state agency so the elder found a middle ground there in between and between that the opinions considering her own testimony and other evidence like her activities of daily living