going there are five pieces of evidence that are critical in this case we have two psychological evaluations we have a letter from a former employer we have a employee performance evaluation from sears which is the longest job mr hall ever held we have the testimony of the claimant and his parents the ministry of law judge basically found that because of the length of time that mr hall perform the job at sears that he could just regard the totality of the psychological evidence taken as a whole the consistent testimony of the claimant this parents and the consistent performance evaluation from sears and the letter from the former employee mr tanner a hard fact to get around it is in the government cited in this brief the case of gregory which stands for the proposition that if you work despite an impairment we're going to assume the government's privilege to assume you can continue to perform that kind of work activity  fact in the end he was the far right he left you left under circumstances where he perceived that he would be fired that's that's the evidence that we have i think that the other case that that that speaks to that particular point term of art substantial gains like heavy i think that the line that we can draw between gregory and gap within the line that helps us discern that the proper resolution of this plane is that when an individual engages in and substantial gainful work activity in clearly mr holland gaijin substantial came for work activity that that would be characterized as past relevant work for purposes of the disability evaluation they did not use the word disabled that term has meaning into the code does it not it has to her it has meaning of the code and as a practical legal matter the commissioner discourages physicians from using the term disabled because it is the ultimate question of fact because it carries with it legal ramifications and when they got to use the word my patient or the phrase my patient is disabled i don't know if they're regulations probably get it there under and so there is no doubt that given dr schwartz his opinions in light of the vocational testimony that was rendered in this case then mr hall would not be expected t determinations which you contend are contrary to what these physicians and other people say right correct but the question is did the l j have to do what was necessary to engage what the doctors said and the other witnesses said and come up with something contrary so under the circumstances what they said specifically and particularly in terms of disability is quite important because he made certain findings  want to ask you now the question too in the record it seems pretty clear that this matter was previously appealed within the department to the appeals council and it was sent back was it sent back to the same a l j that heard the case in this case years there isn't any evidence in this record your honor and candidly i would have preferred to see that kind of evidence rather than the the perceptions of mr hall in his testimony whether it was because he had a particular problem at the end or whether he really there are all kinds of explanations for and there's no real evidence except that he worked the disability that we're discussing is that while this client seems to have no insights as to why a difficulty maintaining work he does not blame his employer employers this is a young man who is so wholly lacking in the sophistication of the workplace that he doesn't understand that the criticisms of his inability to follow directions his inability to too good to be efficient to keep up that the rom of the work pace that the hallmark of unskilled employment that he doesn't even understand why he's having problems although people are critical of him and for a person that dr spencer describes in one thousand nine hundred eighty three to have the problems in one thousand nine hundred one that mr hall describes in his testimony that is consistent with the initial performance evaluation from sears shortly after he started working for the company and then we have a later opinion rushworth could have been anything we have no idea really what happened during that hina educated that he did need help from coworkers occasionally that's the only indication of any kind of accommodation that's in the record his parents did not state d spencer noted that kind of event in special education in elementary school but apparently he was named strange in high school although on the slower track and he was able to graduate from high school she said he had good academic skills and  think l j would have to make a finding of fact based on the evidence that was before him i could only speculate that that the l j could come to the same clues and every might not that's why he would have to make a finding of fact based on that evidence but in fact in this case like in all the others that we get people have made a record are not made a record in the court below and the issue here is simply whether there was clear and convincing evidence to allow the a l j to from make findings that were contrary to some of the other testimony particularly that of the doctors and that as your review of the record it appears that the appeals counsel sent this back to this what we now know is the same l j  he had made a decision in august thirteenth two thousand and one finding elsevier impairment apparently appeals counsel felt that the record needed to be fleshed out in some way perhaps what the judge reinhard suggesting they did send it back on august the tenth for further proceedings and they had a supplemental hearing on november sixth two thousand and two in which all these people testified so with that admonished when they came back there was a full record of whatever was there  done and the question before us as i said is whether the clear was clear and convincing evidence you know of any evidence other than what has is contained or referred to rather in the  briefs themselves that would suggest in any way that there was not clear and convincing evidence that would allow the a l j to distinguish and find otherwise of what the doctors testified no i know of  evidence or i would like to distinguish the gap with a case which was mentioned by powell and in that case there were a series of short term jobs while in this case claimant was able to work for seven years now  the able jay did we jeff some of dr spencer's findings she predicted that kind of may have difficulty working independently and understanding what was expected of him but according to this year's evaluation he was able to work with sponsible with only moderate supervision and he was able to take an issue tempt to move from one task to another so his demonstrated ability to work contradicted dr spencer's prediction sears the district court found that this evidence was compelling and we also submit that this evidence is compelling and asked the court to laugh affirm the district court's decision i think any other question one thing i wanted to respond to was the question about the interest of administrative finale there is a there's a strong interest in administrative anality but there's also an interest in ensuring that the safety net that the social security act represents does not have such holes in the not that it's lets people fall through this claim was filed late mr hall sought benefits late in the day if he doesn't prevail on this claim based on this record his work experience it's s becomes non relevant legally and he just goes on s s i based on dr dr schwartz as a reporter interested in ministry to finality as opposed to putting on welfare benefits or giving him the benefit that he earned by closer during i think outweighs the interest in the ministry phonology and that the interest in making the correct decision is more persuasive in this case but in this case don't you have someone here at least from what i gather in the record this this this gentleman as a case that is typical of literally tens of millions of people in this country who are similarly mentally sociologically and educationally situated is it your contention that in order to take care of this gentleman who admittedly has a very sad situation that we should award this to him which would basically provide a precedent for tens of millions of people who have marginal skills to be treated  disabled isn't that what we're dealing with here people that are are just are retarded which mr hall is not handing do work people that are borderline functioning can and do work the question that we have to face in light of gap with and other cases like alice across the that's what the gap of case talks about is that we don't in reality the bottom line is we don't consign people like mr hall who try to serial unemployment he's he's capacity has proven time and time again not to be sufficient  fact he did work it's a little bit like the taming of the true is that the son of the moon he worked they did not and if i stand out in the rain one enough eventual get struck by lightning i suppose that's  here it will be submitted