treatment for that foot impairment because it was denied injury under his worker's compensation case it wasn't finally approved until one thousand nine hundred nine so when he first started doctor for this position that doctor indicated that he needed what is called a triple arthur this specifically in the listings that is one of the listings that you will look at it's in the listings and one point zero three currently and there was sufficient evidence to support the fact that he might meet or equal that listing based upon that evidence conjunction with the foot impairments which were found he had severe flash significant deformities of the feet at the hearing the news findings are you talking about the findings specific findings made by the way that are supported by the record nor are you talking about some independent finding that is not of record i'm talking about the medical evidence supporting a foot impairment from the doctors not by the way l j which to me they failed they didn't even consider foot impairment well the record was closed and th right so what you're asking us to do is to permit a reopening no i believe that the evidence was in the file that supported that the judge should consider a foot impairment he just did not do solve them and i don't understand why you just  question of law whether or not the judge did consider that particular impairment and whether or not it satisfied the listing so that's why under the listings we believe it would be appropriate to remanufacture medical experts based on his testimony which we don't think th financial need for about two months that he failed to be able to complete his own testimony was after him which worked for eight hours you have to go down and go home and lay down and he could you know and basically get up the next morning if you if we were there was a adequately consider the treating physician now right or do you physicians reports i don't think that he really did appropriately consider the treating physicians reports in assessments that was not an issue that was raised below so i'm not challenging it in that sense that he didn't properly consider which wasn't approved because the insurance the worker's comp insurance carrier wouldn't approve a wheelchair and so the tree physicians opinions were not properly considered theirs statements also by other doctors saying that he's completely disabled until he can have the surgery after hearing he had his foot in a cast and was awaiting further surgery which shows that he you know he when the treatment was available to him he would utilize the ability to get that treatment but it just wasn't available to  so your last let me just make sure i understand what in light of the credibility issue you just said if we were to agree with you they would be eligible for benefits or qualify for benefits for the stable what is it that you he should be found disabled locational expert indicated that an individual who has to lie down several times during the day because of pain or had to change positions so frequently would be capable of doing any type of sensory work so that would ideally that's what i think what we would ask for that if that doesn't pan out for you then i would like it a re man for the purposes of having a medical expert review the evidence and determine whether or not the foot impairment was significant because the judge only said he has a post polio likely and that's clear that's not exactly clear because what what happened was the worker's comp case they were originally denied plagiary because they said the foot injuries can be a result of the need problems but then his treating doctor provided an opinion stating the foot injuries were as a result of the knee problems because he had weakness in his feet due to the post polio syndrome so that's why the problems developed so that i mean that's what we're asking for i think there are some significant errors that were made in the in the case specifically regarding his credibility when you have to look at the fact that he had atrophy in his left leg and atrophy if you look at the listings if you look at one point zero four eight when you talk about back problems they talk about atrophy because atrophy is a well known symptom of chronic debilitating pain somebody that muscle basically waste away you only have that when you're in chronic pain and so because of the pain that he was in you know we submit that he should be found fully credible if only credible then it around and he was found disabled and under title sixteen purposes because of a significant age change that doesn't necessarily mean that the prior decisions are not correct you're not going to get disability benefits per se coast right he may not get any further monetary benefit one of the major things that he's going to get he's going to get medicare instead of medicare which i don't want to go into details of all that but it is it is a significant difference and we've had we've had clients who maybe had they been on title two would still be here because it would have gotten appropriate treatment whereas when they were on title sixteen they're subject america so it is significant for him it may not monetary benefit but that's really not the significance of this for him right good morning my name is john custer and i represent your lamp our heart happily and commissioner of social security it's our position that the only issue that's properly before this court is whether the ministry of war judge properly evaluated the credibility of the claim it's allegations now in this particular case gail tray found that the claimants allegations were partially credible what he did not find credible was the climate allegation that he was unable to form a sedentary job in this regard the l jason's federation the claim its former work is particularly significant because among other things it indicated that the claimant was not totally unable to hammy late affectively his former job involved quite a bit of standing and walking he was a pos cleaner for a week and then he apparently worked about seven weeks in a wareho he said but significantly he didn't say that he was terminated from his last job because he was physically unable to do it he said that he was not able to move meet the performance standards at that job it's also worth noting that immediately after well i believe the a l j does address the foot problem by referring to the post polio syndrome and this was a matter that was diagnosed by a doctor who was specifically looking at that issue when you give  from transcript page twenty five which which paragraph third paragraph from the top notes dr callaway comment he presents with sudden onset of right foot pain he is market flat for perform diagnosed you q convention the diagnosis but then didn't take it into account and you term disability well i believe that he did the doctors who weighed in with opinions on how much physical activity the climate could perform well said that the climate could perform sedentary what shammy sedentary work i believe doc case again it's a bold statement and i believe it refers more to the claimants workers compensation status than a relevant consideration to social security's definition of disability the evidence strongly suggested in support of the aylesbury decision that the claimant could perform some range of sedentary work he allowed the claimant some benefit of the doubt with respect to his subject out excuse with the vocational expert testified that he even with those restrictions inline the getting up and standing every every every half hour and the elevation of his legs at the climate could still perform significant numbers of jobs i don't maybe i'm missing something in that presentation you gave then still waiting for the answer j well i don't believe the judge thought that the foot problem wasn't an impairment well i don't care what you thought i want to know what the findings are but i'd rather let me that is like arguing with we can't just make up our minds we like to take care of somebody we have to have a reason to either reverse or affirm the case and that's the record you made before they l j right that's when the doctors testified we're not listening to lawyers testify we're just trying to get you to organize the record and put it in shape that we can understand and apply the a l j decision as i've noted referred to the flatfoot condition flatfoot condition was also considered by the state agencies factors that's why we're here two of the points and like to make briefly the first regarding the listings themselves it's clear that the claimant did have the ability to and delayed affectively during the period that's relevant to the what happened whatever happened to him afterwards whether it was the triple or for geishas or any period in which he was not able to and related affectively would not warrant a rematch the other point that i'd like to make is that if the to work which exists in significant numbers in the national economy isn't that clearly undermined by the vocational expert testimony when he was asked to consider the l j was not required to believe that test the answer to your question is that if the l faith had believed that testimony then i had made a finding that the claimant had to elevate both feet yes