like you to know is this is a lady that was in a very tragic auto accident she had multiple surgeries to try to get her health back she tried to get her associate's degree which in indiana takes about two years it took her about five or or more to get even though she tried that she could not go back to work become so she has you were looking back i think she didn't get that a put point you've now she has everything she could get she does except it's meaningless because it doesn't come with medicare and last i knew it didn't come with any monetary payment because of the way of resource and income rules worked i can't tell you for sure that that's exactly the situation today but i thought you were looking back to december thirty one two thousand and eight because that was her date last and she was correct and that's what you need for the disability benefits and wouldn't they have some ongoing significance if she qualified for d i v yes your honor if she just gets s s i but she's also seeking  recommendation so jake seps almost all of it except this statement about the twenty minutes of moving around right that's correct and the twenty minutes of moving around also involves adequate rest to accommodate whatever the moving around does to her physically the judge and the strong essentially says she can't sit because her parents are so bad she can't sift and so the only way that she can do anything is if she can get up and move around because sitting is the implication is a set sitting is harmful isn't there evidence in the record that for sleeping purposes she needs to be in a chair because being immobile gives her bed impactful thing to do that you need might need to move around yes and as we move forward with medical science apparently that's becoming more and more clear so that's the the r f c argument in a nutshell i know that the hot button argument this appeal is the behavior of this or the statements of the judge at the hearing and i'm mindful of how serious this is i i was a a circuit court judge in indiana for a while and it's important that judges maintain  partially unfavorable ailed a decision they have to go through the process of writing and that first point i'll stick to jay says are you taken this case back to district court and never been asked that at a hearing before i was i thought it was improper but i just said i depends on what you write what else am i going to say but that's an impermissible time to decide this case there's only one permissible time to decide this case and that is when she's when the ale j signs the decision after going through the  e process of writing so that's that's our position on those issues your honor i'm a little bit concerned about every case i do at this point whether there's actually a commissioner of social security i did not raise it but it seems it's going to be it's us it's an important issue we've got to have a commissioner and miss to a spa day maybe this is time to look at  i don't want to have to bring acting commissioner berryhill gone away the statute under which she was made acting commissioner i believe has expired her time has expired c commissioner in charge of operations until such time as jones who is who is the acting is there is no acting commissioner there's no acting commissioner other things are limited to only the commissioner of so security can there are statutes which refer generally to the a l j a final decision or a final decision of the commissioner in this instance to l j his decision became the final decision of the commissioner at the time when she was when she was  recognising what she was at been asked to do when the case had been previously remanded but you know the the l j does not in my view really grapple with the evidence that's favorable to ms speicher i get a real picking as we say feeling so just to take for example dr strong's statements about her ability to sit on the examining table the l j finds a place where  dr strong says she can do that but the a o l j doesn't deal with dr strong saying that was very awkward and slow for her to live back on the table she had to pick up her life with her hands  both get it on and off the table when i asked her to walk on her heel she said i cannot because of the pain and so forth so the l j never brings into the discussion the negative factors and i did know her speculate your honor what she said at the end of she does not have a problem sitting standing and walking i recommend that she not have to transition from sitting to standing more than a third of the work day so let me push back here because she does also say that she has enough problem walking that she needs the cane she needs to walk only with assistance that's even reflected in the are at sea so i wouldn't place any weight at all on a statement that says she doesn't have problems walking when it's plain in the record that she does she's the idea that sedentary is always better would come as a great surprise to somebody who had hemorrhoids for example who really couldn't sit all the time they'd be in great pain they would need to get up she apparently is a person like this and doesn't pay any attention to that you want to got the strong did say she is a cane that is medically necessary right and so the  recommendation for walking around for twenty minutes because the recommendation is simply a recommendation so was the rest of it respectfully your honor the way that the report is written says makes a specific statement that she should alternate between sitting in straight and should so should is not you must show it is here's what i think ought to happen here's a recommendation that's just as much  recommendation as a recommendation but i think the answer to that again as i said is the l j called a medical expert the medical expert said i have looked at the stuff the strongs to this report i have looked at the state agency consultant report i honestly think if this woman is not disabled we should just close down the system i mean i can't believe with between the the disability that followed the car accident and the disabilities that are secondary to her morbid obesity the notion that she can stoop crawl and so on which i know you're going to say well that's what not part of the d o t jobs assuming the  ninety one d o t describes any jobs in today's economy which maybe it does see your honor respectfully every medical opinion in the record said that she could stoop and probably perform those pastoral activities including d strong what you're sexually saying is that l j should have disregarded all the medical evidence before her and played doctor based on what she thought was common sense and i don't know off not at all that but if there is no medical evidence in the medical opinion in the record that says she can't do those they medical opinion the doctor strong gave said she had to get up and walk around for twenty minutes we don't have a vocational expert suggesting jobs that are with that maybe there are jobs that are consistent with that that would be fine but we don't have the saying anything about it i respectfully disagree that that is a requirement that she get up and rock around she said i what she said is because the poor obesity when you see that that tends to exacerbate that's true as mr forbes point out sedentary work is probably not good for anybody that doesn't mean that everyone is disabled what the what said is she should get up and walk for up to twenty minutes she never said she must walk her twice suppose we had asked of the what jobs would exist if every hour she sits for fifteen minutes and she gets up and walks around for not less than the twenty so it's a more conservative approach than what dr strong was recommending but with the ve have said that we do not know because that was never presented to the e on either direct or cross  again that is not a limitation the what the need to get up and move around in the inability to sit without there is only harming yourself there is nothing that says that she is an able to sit without suffering immediate harm that is true yours but she is different there is there is this bedsore evidence in there she she has bigger problems than most people with sedentary postures your honor all i can say is that is an issue that was never raised in in any of the of the medical pinions the l j also she is not being asked to i don't in any of these jobs which you'll agree she has a lot of trouble with she had trouble lying down on the examining table she has trouble lying down to sleep at night those are those are things that are in that are in the background but again are in the record where in the record the the l j was w has medical opinion evidence and she is entitled to rely on that medical opinion evidence you have to medical professionals who looked at the record all of the up there is no evidence that was in this in the record at this point that those medical professionals did not review and they said she was capable of said terri work i would point out i won't be even the district court that reminded said that the  recommendation is knows no reason to when we quoted this at page twenty two of our brief it was essentially exactly the same as the state agency restriction they o j was not required to accept this is part of the art of c because the r c is what is the most a claimant is they able to do in light of it your but that's right it looks to me like the are of c thinks that the more sedentary the easier and i don't think there's any medical evidence in the record to support that i do not believe that that is what is what the what it found i believe to put that down is that she is capable of a job that requires her to sit for six hours of the day and walk for two hours of the day that is what how sedentary work is what the person is capable of doing there are many decisions of that sort that come up all the time and so again i would say that the a ok was entitle to rely on the medical opinion evidence before that was  factor back in mild impairments once a severe impairment had been found i do not believe there are any such mild impairment that she did not factor in well there there's mental incapability that was a mild of pearman it wasn't as severe because she found it not for the severe not to trigger the original of course because it didn't last for a year but no one can have a mild impairment but two found that she did not have an impairment that lasted more than then than a year that it was not an impairment well it's found in this instance was that after the year was up when she saw dr strong she had no limitations in the use of her upper extremities that dr hate that she had full full strength no painful move of motion with her elbows hands and wrists and she did not again seek treatment for anything regarding her elbow until after she had turned fifty years old right and none of those questions were raised that was a button quite frankly that an hour off task is too much so so there is evidence to that your honor i know normally the procedure is to remain these things