there is no definition of satin terry in this policy right no i guess not no so the district court looked at other case law correct i don't know that he did  well i looked at armani i thought well are money yes yes ok i mean armani says that an employee who cannot sit for more than four hours in an eight hour workday cannot perform s work that requires sitting most the time is now what it does yes so where are where in armani does it suggest that an individual needs to be able to sit for six to eight hours to qualify well about this one in your hand and that's why armani is kind of controlling for me is it not known if i don't look well it's not controlling because in our money he could only sit for four hours so armani then we're talking that where an armani and says an employee cannot sit for more than four hours in an eight hour day cannot perform said barry work they require sitting most the time is the rule right no or that's the rule we have to apply ok i understand your idea of what it says so did the district court clearly error in finding that your client couldn't could sit for more than four hours an eight hour day as it relates to this what i have to do in this particular matter as to putting this lot together and doing all lat but when it comes to looking at the facts of the case  problem comes we're not talking about you making a great point to the jury on your side of the issue we're talking about we have to look at the evidence that's in the case and there's two sides on the evidence i mean dr grossman would not respond to the questions about that they had about he is or at least that's what they said but we have two different sides and with clara view if we've got one side there's no free amount of time that's totally meaningless in this context because a total frequent amount of time is between two and a half and five and a half hours in an eight hour day and if you asked for hours  sit for more than four hours it's already and anywhere in that range just like flipping a coin how they ever found these lines and you have a dim study can't that he can't well there's all kinds of objective evidence he's got c sixty seven ridiculous he's got a i don't mean that's just where we're again a functional capacity exam is the exam which would say with all of that stuff you consider you can say it well we have is dr john reviewing the records the evaluations of surveillance was strict did he says two and a half to five and a half per day right a half hours which is not evidence that he can sit for more than four hours ok the f c a found the same thing  thank you your honor may it please the court good morning my name is stan mcguire representing the appellee life insurance company in north america i respectfully submit that the heart of this case rests on standard of review of this court and burden of proof in the lower court hopefully that's way premature your honor there are two issues presented and the pfister court found st that the plaintiff did not sustain his burden of proof to demonstrate the inability to sit more than four hours a day so as to be deemed incapable of sedentary work under the armani test nd the court found that the record as a whole did not support his ability to do said inability to do sedentary work neither of these findings were clearly eroni yes i'd like to address the armani issue st the appellant's position that armani either stands for or even allows for a requirement that a person must be able to sit for six hours to do sedentary work is unsupported there before we get to this language that i read to hear what you have to say to that argument the fact is that the our money court considered all of those other arguments not only one while the our money court considered it once but the th circuit considered again  cruise baka and nevertheless after reviewing all that same authority that the appellant cites here came up with a rule of law that four hours is required not six so the point i was making your honor was that these arguments have already been considered and rejected by this co case had particularly rejected the treating physician rule noting that social security is a different system but in armani we did say that our definition matched the d o t d most of the time definition that is correct your honor but the d o t and the so security are different definitions the d o t which is promulgated by the department of labor which also promulgated theorists of regulations says most of the time the social security regulations which are promulgated by the so security administration which don't apply here are the only ones that talk about the six hours and even then talks about it as a guideline generally approximately six hours so under armani if the plaintiff can demonstrate that he can't sit for more than four hours then he can't sedentary work but the d j here found that the plaintiff fail to sustain that burden and that's really the crux of the you waiting the district is in a range and everyone does that social security does that the d o t does that the insurance companies do that and the reason is because functional capacity can vary from individual to individual and based on other factors such as exercise medication mood activity level i don't think it would be accurate to describe functional capacity for a particular number of hours and that's why the range is used so  go up to five point five then they do it exceed the forward sure so that makes them beg us to know what it really says no i disagree with that your honor because the purpose of that story argument well i understand that's the argument and i respectfully disagree with the argument and here's why st the range is appropriate for the reasons i described nd the district court has the benefit of a do noble review if that's to have any meaning the district court has to look at all the evidence in the record and make a determination of which is better supported plaintiff has the burden of proof that the determined that the plaintiff did not sustain the burden of proof not only looking at that one range of how much can a person sit it's two and a half to five and a half but also the other evidence in the record dr patricia saying there's no functional and patient with all the surveillance showing that he's walking around in carrying things and moving effortlessly he has the discretion to interpret the record as a whole and that was the basis for his decision so that's why i guess i'm just looking at that range isolating it and even if we did that if it's two and a half to five and a half and four is in the middle of that range the d j has to make a call on that and he made we don't think a lot about this argument that the doctors on whom you rely were liable well they were well i disagree with the fact unreliable the judge i mean that's the yard i would like you to respond to the response is twofold your honor st the reviewing physicians have the benefit of a horizontal chronological view of all the medical information they are able to digest everything from the objective medical evidence the subjective complaints they looked at the surveillance they had the opportunity at least they hoped to talk  return the calls they're in the best position to make a determination as a whole the whole person analysis of the functional capacity of this individual nd the functional capacity evaluation by blue  blue that was a hands on evaluation it would be nice if mr mccollum had allowed the functional capacity evaluation to stretch for forty eight hours like we wanted but mr mcauliffe said no i'm only in a show off for one hour because you're not paying me to show up i think that we did everything that we could do we meaning line us to try to evaluate this case and in light of the fact that the plaintiff has the burden of proof i think that what we did was certainly enough to do it there were mild objective findings in the record the attending physician didn't support significant limitations even dr grossman the workers comp physician says that he could sit less infrequently he only says that once and that was during the time the claim was paid so it's not even time relevant there were unsuccessful attempts by lynott to get clarity the surveillance post stated that comment by dr grossman mr mccall did not seek approved treatment from doctors that his own doctor sent him to treatment that was approved by workers comp so in short we're not seeing what we expect to see when we have a very young person who is incapable of even sedentary work lie i didn't see it and the district court judge didn't see it and that's why the judge was entered in favor of line in every opportunity your honor to prove his claim we went above and beyond and he didn't do it i have no more questions if you have no more argument you have more argument and require your honor i'd like to take the rest of my time to to respond to any questions that judge  judge clement may have on the case i'd be happy to to address those i don't have any questions in that case your honor i'll rest at this point thank you very much for your time thank you counsel chung everything and the only thing she came up with is this guy has frequent sitting so you were in the back in the same situation where the doctor that supposedly saw everything and has the best  talks about a judge who came up with this medical opinion rule for the defendant and it says that the best case she got that fat appendix case no it's a case that i have come to mind because it was  case that's no president in this car ok well but the logic of it is that a judge it's not a doctor and he doesn't have medical training he needs somebody to put all that stuff together for him in an opinion and the people that put it together for an opinion said that michael has sitting ability between zero and five five hours in an eight hour day and those are the doctors those are the use of the doctors the best doctor that carried out i didn't even hear that be the argument the argument is that is the evidence in the record and on clearer view that's evidence we cannot we can't just throw away well what happens if we got our state argument it doesn't tell you anything that's what they're telling you here we need somebody that can sit for four hours while we've got somebody over your focus of between joint health and i know that's not evidence that you can sit for four hours all right coun