an application for disability benefits in june two thousand alleging he become disabled august of ninety two ninety eight if you can maybe your mind can speak a little louder on the health thank you my hearing was held on july eleventh two thousand and two resulting in an unfavorable decision after we call step five which means that he had then it had been determined that he could no longer perform his past relevant work but there was other work that was available for mr abbott to do the issues in this case that we think come to this quarter basically two one is the hypothetical question that was asked of the vocational expert in this case and the hypothetical question was based upon a residual functioning capacity assumption that mr abbott had the physical capacity to perform like work when in fact there was no evidence of that fact  comment on the commissioner's argument that dr bateman goes back and forth between stentorian severely limited in checking the boxes and therefore is on public assistance in order for him to receive public assistance he has to establish that physically capable of work the fundamental misunderstanding or the misinterpretation i think by the able change in this case is only to look at one portion of the form not the whole section that refers to the various categories of work you simply cannot look at sedentary or severely limited and simply say that ends the inquiry the same section that same part of the form asks the doctor to express an opinion as to how long the individual be able to work at less than half the time and consistently throughout this we shown in the table in our brief is that for the function at less than half time or half time to last for the next five six months for the remaining numbers of forms that were filled out he said it was indefinite basically saying this guy was never going to get back to any kind of gainful employment you don't look at enjoys and while these doctors don't set forth functional on the patients in their reports well that's not the function of medical records typically doctors have a process they have a way of writing those we set forth in our in our br actually see the patient or was he just reading files no he was just reading faster and so on so he did not examine this person was not examining physician and usually the inference that is often evidence and down to specific reasons for the illustrate to tonight adopt one doctor's opinion over another and you know it may be there is just one doctor over all over the map because dr bateman he went back and forth between saying he could do sedentary work or is severely limited i couldn't do work at all the suggestion there is that he couldn't even lift two pounds or we go off the rails on this case if you if you discount his appropriately discount his abuse then you know that it seems to me the commissioner wins but if you his view was inappropriately thank you thank you actually the question asked one question which is not specific to this case and you may or may not be able to help me with an answer to this i've been doing this job now for about eight years and in the last year i've seen more social security disability cases the most all the other years combined and at least a fair number of the cases i've seen this year are pretty plausible up here people are of the claimant number one of my perceiving that there's a different breed of appeal to number two if i am what's going on i think that is i think that it's just i think it's a statistical blip here  i i can't really first of all the only regions obviously that i only have any contact with region ten and we hear from region nine which is the california cases  believe that the activities of daily living were inconsistent with the claim of disability we all know that people don't have to be completely helpless in order to qualify for social security disability benefits we also know that when people act in their daily affairs they set their own pace they set their own schedule they make decisions about what they do when they do based upon as in the case of mr abbott how he feels at any particular time so it's a say that just because somebody does activities doesn't mean that they have the pace the persistence the stick to it is if you will of what's required of a job going eight hours a day five days a week the judge just simply concluded without real explanation why the activity is pointing to an ability to work as to the issue of the sleep apnea you know mr abbott was fired from his job because he fell asleep driving a company vehicle there is life yes and this was an individual that was working i mean he wasn't like sitting back waiting for somebody to send him a check the man was working and it was his medical condition which caused him to be terminated as which president are brief page twenty five are opening brief there was numerous references in this record of the fact that that the seat that she just wasn't working very well they had made adjustments that had been numerous references to going back and trying to get it fixed and trying to get adjusted and it simply wasn't working very well so the other thing that really concerns us is is what we understand or what we believe to be a misinterpretation of the d s h as forms by the a l j the bottom line was that the that the doctor always said that mr abbott was not able to work and sometimes mr abbott might have been marginally more functional on some days and marginally less functional on other days and it was simply the doctor expressing them but he