tell me exactly what you think the hypothetical question should have said well the hypothetical question should've taken into account fact that for example while the in this particular case crawling limited to simple routine repetitive tests only occasional interaction with the public is is there some other place i should be looking to you know why most of my of my you are in that i don't understand what ok in my ear i mean there's there's there's certainly it's a simple cation all experts testimony did indicate occasional interactions coworkers would generally preclude competitor the point right i mean that much i know the be able jay returns several times i'm sorry it's a man mr jacobson yes he returned several times to the fact that once the cases and federal work you can file second administrative appeal so i was able to develop the second application and i can indicate that i had information pertaining to that job that was not in the record i'm basically was unloading newspapers and papers and stacking bundles for delivery but i think that drop that going back to the record i understand that in the record he testifies that he has these five hour shifts three or four days a week but he takes three to five breaks during each shift for times for up to twenty minutes so essentially even if it's just three shifts if it's just three breaks twenty minutes then he's really working four hours out of hearings a month that kind of restriction would be for purposes so the l j here says if the break is one where the person stays at the work station whatever that may be  that's one thing but doesn't the ale jay also say if you have to wander off and go some other place that's reclusive yes it does he does that the problem is judges and i've cited this in the will to the brief in the reply brief the hypothetical question that was presented is almost like a rorschach test the judges using these questions these cases on a regular basis knowing perfectly well that the result will be plenty of jobs you can look at the loans and we just don't work see them i don't want to go quite that far but but i thought another point you made me your brief was a question about where those off task up to ten percent number came since the ail j says it's more than ten percent off task up to ten percent without it being disruptive or employers complain it has nothing necessarily to do with mental illness i've asked the question repeatedly of every vocational answered it can be ten percent if they're playing fantasy football and small as they're doing ten percent off as employers generally don't care when it exceeds that that's when they start to care and in this particular case to argue or to point out that ten percent somehow reflects the claimant's mr lanigan is mental illness is disingenuous because it just it's a number that has no real meaning it's just something that's pulled out of it's a preconceived notion preconceived idea that this is acceptable well i mean maybe so but i guess i would have thought if you're arguing that the hypothetical itself needs to have some grounding in the medical facts about how often this man would be off task and i can see your point given his testimony about how often you soft task even his part time job i mean i don't want to go into the business of you know it's sort of common experiences that employers can tolerate six minutes of fantasy football out of every hour that surprises me a little bit but you know that's what they can do i'm not going to question that that but i do muscle tension sleep disturbance hate some of these may very well show up in this hypothetical question but we don't know what basis the judge had in this there's never an explanation we get these hypothetical questions and we're left to try to figure it out and quite frankly the law has for a long time been administrative proceedings that you're supposed as a reviewing court how can you uphold it but then jay does talk about his mental impairments in the section of the opinion in which he's looking to see if one of the listed impairment met he doesn't spend too much time other than that now and the problem again is just stating what his impairments are and some of the specifics does not create the nexus that's necessary to necessarily understand where these came from why is it that no piece worth of fast moving assembly line type work is precluded but nothing else is you know quite frankly as i substantiated and he's actually was arguing that the l j had not fully incorporated or represented those opinions but he didn't the argument was not that there was additional medical evidence that the l g failed to consider or review the l jay's opinion we don't review the district court's opinion filtering the ael jade's opinion no i understand that but in terms of it was essentially conceded there wasn't an argument or evidence pointed to that mr land again was more restricted than what the l j found like if you look at the opinions of the state agency medical consultants he didn't say that that th that i'm concerned actually about this ten percent off task given the evidence in that record i'm concerned about the ale chase equation of the part time work at the michael's which he testifies is done with the manager knowing that he's got these psychological problems making allowances for him with this you know random twenty minute time breaks you know going off to the restroom and calming down or whatever he's doing i mean that's not the same thing as a regular full time job there's plenty of law that says that so i'm concerned that the ale jay is relying on things we've said are not reliable well it's true that the ability to do part time work is not proof that someone's not disabled and in particular part time work which is being done with allowances for the disability that's he says the claimants testimony at the hearing was generally credible and so i don't see that as as questioning what is generally credible does not mean the daily activities have been sometimes greater that he actually works in a retail store about fifteen to twenty two hours a week in five hour shifts but what the l j fails to comment on one way or the other actually negative opinions as opposed to the positive ones well couple things about that judge would first as they already did ask him at the hearing about if he had ever missed any days of work due to his alleged symptoms the idea being if these if you were having so much trouble working you probably would have missed of these one day during this period they have you also commented several times in the decision that despite his complaints he was still able to go to work and maintain employment that's right that and that's what worries me because this opinion really hinges on that particular finding but it's as though what one could read this to think that the ale chase thinks that he is successfully working a real fifteen to twenty two hour a week job in five hours shifts while at the same time we have the vocational expert saying that if you're taking breaks more than ten percent of the time you're on employable and he's taking breaks more than ten percent of the time but in the ajay finding that he was able to maintain this employment does that not suggest that he was not in fact a king's freights no it doesn't it suggests that the end because he testifies that the employer for this kind of part time work is a but what do you think does or that a seasonal employees are who's hiring him because they're extremely busy who doesn't have any previous relationship with them is doing something that the vocational expert says some people are decent you know substantial evidence doesn't have to be a preponderance and you know only be reasonable reasonable person could think it unlikely that he would that this company that needs extra work during a busy seasonal period is not going to be employing someone who's only  several times said despite his complaints he still was able to maintain this employment so it's not as if if they all day had never mentioned his employment as a factor i would agree that it would be improper to speculate that as a basis for the decision but here they o j is clearly relying not only on the opinions of the state agency psychological consultants but also the on the fact that he was able to hold on to this job at least you know as long as they those those aren't there those are medical opinions by his doctors about what he can and cannot do they often tend to be i mean sometimes those are just reporting various symptoms to his doctors how he's feeling at a particular day or a particular time reza l j pointed out to be disabled you have to have those types of symptoms for the duration period twelve continuous months so the fact that he had certain periods or days during the course of the record minutes to pending on what it is i mean is that are you referring to his report or is that a doctor's conclusion that's what he says the l g is recounting ok this is what the l j says that he can do this but for example if you look at treatment you know it's for example starting on page fourteen thirty three of the administrative records you'll see a section called assessment that's in essence it's called the mental status to the agency as most disability claimants do you know what his symptoms are but the those are backed up by his you know his clinicians aren't fully endorsing those symptoms none of his doctors came forward and said you know the state agency psychological consultants here are underestimating is his mental patients so this is a case where this court is commonly telling the ael jase you know place more weight on medical opinions do less freelancing on your own this is a case where you have to medical opinions that support the l g s decision and you have known medical opinion from a treating or damning source that suggests that he was more limited than  warrants an opinion and if you look at those same treatment notes that i previously reference beginning on page fourteen thirty three of the administrative record this was in essence a short term crisis as opposed psychiatrist but isn't that can rather continuous treatment relationship post i mean i'm sorry commitment is in treatment but for example if you look at you know starting i believe the incident was in june twenty third teen if you look at the treatment notes beginning in july twenty third teen you know right after the incident he was rated as having a moderately anxious mood from there on beginning on july ni but there's also medical records that say that he wasn't diagnosed with a dissociative disorder again this is a case where none of his doctors are saying you know what he can or can't do or that he's unable to work whereas you have two doctors along with subsequent preterm and notes suggesting that he did have he did have an incident but of course if that was representative of his mental state during the entire four your or five year period of course that would be you know very problematic on the other hand if you look at the evidence before and after that's sort of the worst of his symptoms as opposed to a continuous problem about the other complication here is that that the hypothetical that was going to the location less expert assumed itself says that he can only work occasionally with other people and the vocational expert apparently gave an opinion that if he can only sustain occasional contact with coworkers and or the public then he cannot be competitively employed actually after such a disconnect there if you look at pages sixty four and sixty five of the administrative records he was able to work if you could tolerate occasional the problem the thing that would be worked for who said is if you could tolerate absolutely no contact in the workplace because that be said even in the most manual labor jobs you're going to at least be somewhere change that so again on sixty four there is there is a question about occasional and then there is a response that that would reduce that would reduce some of the would have to look at the record because  there's a page sixty five seems to say if it's even occasional with coworkers if there's preclusion from competitive employment not absolute isolation well at that that question is ok what if rather than occasional the individual were limited no no what if what if but what about an occasional occasional is that response you know on the top of page sixty five which identifies numbers all right well i think your time is up so  mr duncan if you need an extra minute i'll give it to you sure i have the option otherwise true you have to keep short by standard and by the idea that the l j could be dismissive at all or the commissioner because there's no mental impairment or no mental report is a little bit  case yet if we come in and say well he ignored this report commissioner's first response always says well that the ultimate issue of disability is left to the commissioner so therefore why we don't have to give this that kind of weight so you can't have it both ways you can't be critical that there's an absence of a report and then when the report says that he's disabled going well you can't say that either in this particular case to of argument was is that the l g gave significant weight to this or did the state agency psychologists the problem is is he his real decision indicates he gave great weight to the sustain a light to medium work while furthermore if indeed that's the case and as i point out in my brief the hypothetical early in the narrative report of the state agency doctors indicated he was limited in the skill simple type work which by multiple cases has been determined to not reflect concentration persistence and pace you have to then go to the check boxes and they mark that he had problems with he had problems with earth tension and concentration he had problems working around other people and none of those specific things punctuality or any of those are specifically addressed in the hypothetical question