it please the court my name is greg wallace and i represent col bryant in this appeal on behalf of his deceased father donald bryant you know mr bryant the father who is the claimant in this case died eight months after the decision in october two thousand and ten mr bryant had a number of areas what's the range or what's the range or what benefits or order of the heirs he would that the heirs would get back pay they would not get any sort of continuing monthly kind of payment that they would get back pay which i think would help them defray some of the medical expenses and things like this for for mr bryant's care because he did not have insurance now he suffered from a number of medical conditions congestive heart failure coronary artery disease malignant hypertension hypertensive cardiomyopathy chronic problems with his kidneys with his colon with his liver c o p d extreme obesity his  mass index was forty six and is as i said he died from a sudden cardiac arrest heart attack from this according to the autopsy report from hypertensive heart disease and this coronary artery disease  he did testify at the hearing that that these conditions made him short of breath he had difficulty raising his arms over his head he had fatigue he had swelling in his lower extremities the  pain that was associated with various conditions affecting his concentration his memory and his attention he could not sit one periods because of the pain his problem problems with this with his col now the able jay found that mr bryant could perform sedentary unskilled center work sensually with with some environmental limitations and and this is about credibility and our contention is that  he's discrediting mr bryant because he had no frequent treatment or extensive pain medications now the commissioner has translated that in her brief to she describes it as conservative non hospitalized three times and then he was hospitalized one more time that year after the decision and in march of two thousand and ten he went in for chest pain and shortness of breath he was diagnosed with severe global experienced severe rectal pain and bleeding and shortness of breath he was diagnosed there with hydro phroso us which is a structed kidney the term literally means water on the kidney but it  had fallen he had increased fatigue at that time the doctors noted his uncontrolled hyper tension and his hypertensive cardio my off the which is a weakening of the heart and sure enough eight months later he was was dead of a heart attack so i don't think the l j scared tour characterization or the commissioner's characterization is conservative non surgical treatment here is something that is it is accurate from the record  the l j also held it against mr bryant that no treating doctor had had given him the any work restrictions and we cited three cases paid vs fires hussle pay fires hustle and lauer in which is court is is held that that's not a significant issue if these if there's no indication that the doctors were ever asked for an opinion and in this particular case they were not  his his daily activities like housework driving his mother to the doctor and shopping are not at the kinds of activities and and we've cited numerous cases in our brief there these are not the kind of activities that  demonstrate that a person is capable of performing you know full time work on a five day eight hour a day basis in that regard the the l j him for some noncompliance and there are a couple of instances in the record where he was not taking his medications of course he didn't have any health insurance and there were times that he had he didn't have the smoking cases  heavy but but moderate at least moderate smoking yes at least moderate in that in that regard but it's also an incidence on on the record that his attorney tried to get in the apply for some of the programs the drug manufacturers offer to alleviate the cost of the medications he and he muttered fill out the forms yet there was one there was one reference to that but but at the same time you have to compare that to all the treatment that he did receive here including medications and and that in when you when you compare the these isolated incidences now smoking is it is a so is a separate issue obviously but i'm amazed that he was able to receive as much treatment as he did given the fact that he didn't have have health insurance and the financial resources here but the regulation as far as smoking goes says that it's only to be held against a claim that if if stopping smoking would restore that person's ability to work and there's no evidence in the record that that stopping smoking i obviously common sense would tell you it would have helped but there's no evidence in the record that his stopping smoking would restore his ability to work here and because you know his given the fact that he was afflicted with so many different types of of  of counsel didn't answer this directly but a pack of cigarettes equates to twenty at one point he was smoking one pack and a half which is thirty cigarettes per day so that's almost nine hundred cigarettes a month and i also want to address no doctor the record opined any work restrictions and that is consistent with plaintiff actually collecting unemployment benefits another point that plaintiff's counsel didn't mention as this court is held many times in johnson trader and  collecting employment unemployment benefits bolsters the l d s credibility determination that person is actually holding themselves out as willing able in ready to work which is consistent with no doctor in the record opining any work restriction day he was obese he also testified that he was told to exercise and diet to lose weight he didn't do that so in terms of not being able to afford treatment stopping smoking and exercising that's free and as i stated in the brief he hasn't  evidence that he was denied any low cost health care assistance or medication assistance and has just simple pointed out this was in december twenty ten after the elegies decision he didn't even enroll in the medication assistance program any cardiac issues now that was the only factor he considered in isolation plaintiff's argument would be stronger but that was one of many factors that they'll consider to file plaintiff not credible me being medication  of work restrictions by any physician collecting unemployment benefits which shows he was willing and able to work and also daily activities of housekeeping which included sweeping mopping doing laundry making this bit he actually testified that he cared for his disabled mother by driving her to doctor's appointments and taking her shopping nonetheless they'll jay did take into account  perform at step father and i want to address plaintiff's conclusionary argument that in light of being limited to sedentary work he entered he reaches a meets a borderline age category being that he was ten months away from being fifty years old which would render him disabled that's not a political because if this court ruling by eight months is not considered a borderline sister situation so ten months also is too distant y four hundred cigarettes six hundred cigarettes him on his last treatment are seeking treatment was december twenty ten he didn't seek any treatment after that didn't sign up for the medication assistance program and six months later after that he died from sudden cardiac arrest so that was a foreseen that not following doctor's orders and not smoking and that's a make light of this not to make light of him dying but people work every day and die from a party at a rest and here we have a plan a plaintiff who was collecting unemployment benefits had daily activities that were housekeeping in caring force disabled mother  no physician opined any work restrictions he was in the plant with medication and when he was taking medication it was only conservative in nature being able to sleep and having to sleep in a recliner and having limitations and sitting here only brings that up at the appellate level he didn't bring that up at the district court level but the record as a whole if he's trying to collect when not trying if he's collecting unemployment benefits these saying he in closing i asked this court to affirm that this accords decision thank you thank you why we would like to remain in these in these credibility issues in the determinations the medical evidence plays a huge part in that's not the only part of plasty requires but it's a huge part and when you have a nail jay that starts out with a standpoint of he hasn't received much treatment and taken no serious pain meds which is so contradicted by the record the end what we would like to do is to have this re managed so that it another