past would come out in accordance with the way he thought but it should have come out that your honor says precisely what the probably has gone here for five years there was no question but supervisor and believes that he looked at mr adams position description based upon all that he decided that mr adams was impact a qualified individual with a disability moreover he was really a legal opinion right i'm sorry it's not it's really a legal opinion as opposed to for example the detail factual statements in the application social security well the you cannot walk you cannot lead or come in here and say you can walk you can certainly say social security i am disabled and then come in here and say i can walk by this specific factual well nobody lies down all the time it was probably a misstatement that was made but the fact is his doctor examined him before hand and arm in that wasn't the case and of course for others he was writing that only in the reality of the situation in which he wouldn't be in any job in which he wouldn't be lying down could be resting while doing computer work and has right had was completely unprepared his right arm was also on impaire as a consequence of that everything that he reported to the best of his knowledge was truthful but it was from the perspective of having been denied reasonable accommodation from the very outset that application as your honors know from having read the briefs came one day after his final counseling and his final concert interview had been on september thirteenth two thousand and six in which he had been told walk more than ten minutes which sounds hard to reconcile with the with his own description of what the job required robert chatham i think seven out of eight hours moving around and so forth for much of what the job required your honor involved getting up and getting out looking at the computer system checking the legacy system making certain that everything was correct writing reports dealing with is answering to what helped us and all of those things actually he could be doing right down or at least in a position of which he'd be very comfortable but what about the statement him describe this job what did you do all day answer teach classes on computer software hardware travel to various locations to train persons on computer software and hardware worked on computer database you've only been referring to the last clause worked on computer database but what about traveling various locations to train persons on computer software and what about teaching classes on computer software your honor when he wrote you agree those are with those are statements of fact those are statements of fact and he wasn't fact doing a great deal training prior to the time of the stroke as he testified in his deposition the requirement of the training had ceased now the question on the application is what has he been doing up until that point and so he wasn't  getting getting what he needed to gas when in fact that was never an issue in the first place good morning may it please the court holly johnson for the district of columbia mr adams is bound by the facts he swore to in his social security application to survive summary judgment he now has to explain how assuming the truth of those statements a reasonable fact finder could find that he was still nevertheless capable of performing his essential functions if he was given a reasonable accommodation mr adams has made no attempt to explain how this is possible he simply ignores the duties he swore he was required to do in a social security application the only explanation he has given it comes will but in this argument is where he states that this this requirement that he do in person training which he said he was doing a lot of for the first few years of his job had ceased before he had his stroke and he testified in his deposition that for about five months he hadn't been doing any training and i would point this court directly to the the third circuit debts case cited in our brief and the facts there are are in all important respects identical there the employee who also was not a lawyer and who was applying for social security benefits had already been transferred from his heavy duty job to his light duty job before the circumstances arise or in the rows where he needed to seek disability benefits but he only listed in response to that question what do you do all day and in response to the question how many per day do you spend doing these different physical activities you only listed the heavy duty work and the seventh circuit said that he was bound by what he said in his application about his duties that he could not and this is what butler says it says a person who apply for that and what clearly said is there are circumstances where you could be able you could be disabled for purposes of social security benefits because that doesn't consider an accommodation and not disabled under the d n a but you need to explain how you can harmonize those the disparity of facts and here there's been no effort has been made to harmonize that this is a complete bartok to mr adams a claim it does not matter what the district knew at the time it doesn't matter what the district said to him at the time it does not matter what the district would have done and it doesn't matter whether this was on the central element of his job just the fact that he did it doesn't make him central right i think that that's true however i will note that description says and i think that probably the cleanest there's a few different facts like a different duties i think the cleanest one in the clearest want to look at is the training requirement mr the position description describes training as a major duty and mr adams in fact testified that he was hired to train employees and that he did a lot all the way up until two thousand and five and he also testified that he could not conduct this training from home and that's at joint appendix four thirty five to thirty six and for thirty eight to thirty nine he could not do it at home he had gotten a lot it's certainly reasonable and i don't think any fact that assume that someone whose job it is to train employees on new software would never have to do it again i will say that from his testimony it's a little bit muddled but my understanding from his testimony is that when they first started the starr and no bad database systems they had to train all the employees in the agency to capture all the employees they used that to catch up with system and that once that training had been established the training center took over for new employees coming in but there is evidence in the record the star nomad were being phased out that there was a whole new database system coming in and frankly it's common sense if you work in a  information technology that you're constantly going to have to be keeping up with new technology and training employees on on a new data basis beyond that mr adams is a stopped from claiming that he's no longer required to do training under the analysis and that analysis invests he said in his social security application in response to the question what do you do all day if you teaches classes which he admitted he had to do out of the home and that he travel different locations to teach classes was one of two duties he put in his application is listed in his position description as a major duty and there's no reason to believe that d d would not come up again but but that's not the only duty that he had to perform that was an essential function he also had to manage the help desk and he had to be able to do this over the telephone he testified that in order to do his job he had to be able to communicate effectively over the telephone and he had admitted in a social security application and in deposition that his speech was slurred and in fact so slurred he said in this deposition that for two years after a stroke people had a lot of trouble understanding him out of america two years after the two years that improved but that's not a relevant timeframe for purposes of this question the question of whether someone was able to perform their essential functions is at the time of the denial of the accommodation so the question is essentially at the time to be submitted to social security application pretty perform those functions there is no evidence that he could perform the essential functions of his position at that time finally i will note that that his help desk duty is also required him to travel he admitted that he was travelling onsite once a week to help people out with their computer problems and he testified at deposition that he this was just voluntary that this wasn't actually required but his social security applications notes that most of the day was s kneeling crouching crawling and handling equipment he was doing more than just talking to people in his duties and he went on site so he can't claim that he didn't have to go there i will also point this court to butler which is the other case where someone said in an application for disability benefits that what they had been doing was not actually required of the job and in that case the court said the third the seventh circuit said that you can't claim that because you're unable to do something you're entitle to disability benefits and then turn around and claim in a different lawsuit that you're qualified for your job because those copies were not actually required in short mr adams focuses very much on the period of time in which the district did not have the information it had during this litigation in this litigation the district finally uncovered and was able to obtain the social security application and in this litigation the district was able to depose mr adams and two months later a new supervisor painted who had never seen mr adams on the job and and a by the time the litigation came around his earlier supervisor was not available there is evidence there's no larry not available what you mean by that you tried to t inquiries of people outside you're not saying that person refused to talk you just don't know what all i'm saying i don't know you're absolutely correct i would not want to suggest that that he was unavailable in the legal sense what i'm saying is this mr adams has the burden of proving that he's capable of performing is essential functions he testified as to what his essential functions work we presented a position description as to what his essential functions were and he presented a social security application listing duties which other courts always find to be relevant to the essential functions if that's what you're doing all day if seven out of eight hours of the day you're performing physical activity and physical labor no reasonable jury could find that those are not essential functions so given the fact that it is his burden of proving that he was qualified what matters now is whether on de novo review of the evidence before this court today mr adams has established that and because he could not travel his speech was slurred and his holy speculative as to whether he could handle the cognitive was no reason to deny mr adams reasonable combination except for the district's policy but there was no telling you communication policy in place that was the only reason and contrary to what  if the district was without legal counsel district was of able legal counsel throughout the entire time nor is it true that a supervisor was not available the supervisor was available in fact i had to pose the supervisor who took over and he said that it wasn't didn't trouble him that he didn't know what mr adams was going he came up with a plan for mr adams after which a geisha occurred but he was certainly available and in fact he was available at the time nothing this year she was talking about the supervisor before that supervisor sorry i think i think so but but the fact is there was a supervisor who was available during that time period and who was deposed and so i think it's important i think there is a possible misunderstanding to deal with that information i also say that the deaths case is completely an apple said and that it involved light duty computer technicians job is not a physical manual job it's not something that requires a lot of having left it it's true that he did mention that the computer was the heaviest thing he had to deal with but he didn't have to look at the computer most computer technicians don't have a lot of heavy physical labor so to characterize and stop as simply as