i'm david lowry appearing on behalf of mr kuchma i was here a circuit six months or a year ago for an argument and you happen to be the day that the assisted suicide law was here for argument one of the members of the panel commented that he wanted the lawyer to talk about jurisdiction saying that we know all the lawyers hate jurisdiction but we have to deal with it so please talk about it i have the reverse situation today because i brought in with equal protection issue and i think equal protection is an argument that all the lawyers love and all the judges hate on the mean lawyer that brought you the issue you don't really want to hand it to you are a transcript or extra it's one sixty there's a letter i sent to the a the testimony of a methodical advisor if there is going to be a finding that someone does equal the listings this court and previous decisions in leicester and schneider as pointed out very good ways for claimants to came well apply here too there is testimony about anger control problems that would go on for hours that would affect social functioning that would affect activities of daily living that would affect concentration persistence repaved those could be thought of this episodes of deterioration all the elements of the big criteria there's a reference to in the questionnaire the doctor filled out for me with overwhelming depression commissioner or without the able to be receiving medical testimony the real training has a stranglehold on whether there's going to be an emmy there or not you know we're the ones with the burden of proof that's one two three and four and step three position that since you didn't call the enemy you can't call the be either then we would win and the whole case would be over at that point we just have no way of carrying our burden of proof without the commissioner or the owner of great calling me i mean we got to have that to win and we've got plenty of facts on middle here through equal if not me to be criteria but if there's no let me there we're not going to be allowed to do it without regard to how strong or weak the case is we could hear the affidavit from the pope and it wouldn't make any difference we would still be we would still be unsuccessful in the from the listings because having any there is  good morning your honors i'm jeffrey varick representing the commissioner of the state agency position reporting at pages three hundred forty four fifteen reviewed the record as a whole and fulfilled the commissioner's obligation under ninety six  a medical expert review the evidence after that might have its own treating physician present at the critical evidence and exhibit sixteen after which translates to roughly page five fifty four he outlines very precise limitations says with low stress work the plan that can work so the only role for a medical expert and i always like them but l j is often have a burden with their scheduling so they don't call them all the time it is discretionary  that discretion is given and i believe i cited in my brief and for all for fifteen twenty seven otherwise now the succession six p requires the state agency physicians they did go through this record there was no particular deterioration after their report in december of one thousand nine hundred ninety and they didn't find anything in the listings level so that's is really not an issue for the court it seems to me the medical expert would have been discretionary at this point also mr lowry hasn't given us a styria of how the impairments combined to meet or equal the listings under louis versus abbeville i believe i cited in the in the read brief there has to be some plausible well i guess i'd have to look exactly page five fifty or whatever it was he said he wasn't currently working but he didn't say he couldn't work that he was enjoying school and doing very well at school and has been given the job offers and he wanted to do so you could go to work except that he was doing all this hard work and schooling and that was when he was off the  job when he's on the side of life so the question is will he take it or not and we do have the latest money from his mother for example saying sometimes he doesn't and then the players own testimony is that he stopped and events vocational expert responding to the limitations step forth and sixteen now said same jobs and claiming work like a hero at his struggling for ten every night take classes had small group session was getting welding clerkship our first so to speak so whatever else was going on as the mother said when he wants to do something he does it well and it looks like he did i have nothing more you he was never anything from that that was equivalent to an eight hour day forty hours a week the fact that he had some success yes and in that sense we're learning how to weld would be kind of interesting and promising but still doesn't get us to the finish line is there a it's difficult to move through extrapolate that over to something else because the welding could have been something done and you do it for