for which i will point out under the bustamante case which is in one circuit case talking about the a is a necessary finding in that finding actually it says the court found r that we've talked about pardon me given that there was a year plus period of sobriety during the room for the time period and the judge found that he was met the listings and thus was disabled for the entire period m when he was sober and so it struck me that at argument you had you had two arguments on a point the finding four was inconsistent with finding six i think is what you said this thirteen disabled during the year of sobriety but i didn't really see any language going to that was there any language where the specifically looking at the year of sobriety he was disabled during that period as well it was and i recognize that there is a back up that there is arguably inconsistent language but that which is there and i would submit that particularly given the importance of not if it's true would be mended which we're suggesting could deal with but right now you have a situation which i what i would submit is the only fair reading i mean it's an implication but i view it as a necessary implication that if you say you mean everything when he says everything he emphasizes including his substance use letter and so you take that piece out i'm not sure i agree that's the logical reading well but but it is given in the thirteen that's that's essential and is it strikes me as or of a gotcha type argument because the ale jay reading the opinion as a whole the l g is clear that the impairment is during periods of alcohol it is  period of sobriety and so so so say we agreed with you and said well there is an implication the misspoke i mean we would have to say misspoke right because that's the  import of the the opinion is that the impairment is during periods of alcohol abuse again there's an inconsistency but is there anything other than you if you found this language talking about the five year period in general is there anything else where in the opinion that provides any support for your position at the l g i thought that mr brown was disabled during a period of sobriety think i quote so it's not like it was just out of the book he says that in the numbered finding for he goes through a several page analysis and since it says it again to be if you're talking about inferences or how this works it suggests that he meant i mean he had just talked about some of the things you're talking about and then he repeats the same thing so i'd say that's a strong indication or at least a good indication that he should have a different point of george cross point yes what is the general bias that you claim existed in the general bias is quoted accurately and i'm at page four of the supplemental defendants that brown claims that the hale j was biased against a group of people and that and same number of the group he ground was a victim of this pious citing e what group people are you referring to two groups and this is in the documents mr brown had both mental impairments and bipolar and he had received benefits and medical advice has a the term is sometimes used as general bias it's not like he hates mr brown because of mr brown's unique characteristics it's that the bias relating to the characteristic that of particular category i think group or particular category of individuals this issue is outside the scope of the issues i am adjudicating in this particular case as of the district or if i understand your argument th they can review it ministry to findings of fact and that's actually how it's in the context of a biased plea so there you know it's really on point so the issue here is the l j specifically said i can't it's outside my daily work i can't deal with it the appeals council is forbidden from doing it under the s s r thirteen dash one p it's different s s r but it's the same thing where it says and i'm just quoting similarly if the appeals council receives an allegation about another issue that is beyond the scope of its authority such as an allegation that hail j shows general bias or a pattern of bias or misconduct against a group or particular category of claimants it says it has descended to something called the de q s which is another branch of that say that somebody the gist of it would be it should be sent back and somebody at the administrative agency should consider saying the procedure that the social security yet as a nation has is unconstitutional  assume is a word and we haven't heard the thing assume that somebody is shows bias a pattern of bias that everybody would agree to assume that i'm not saying this is it you're stuck there's nothing there's finding a due process violation well if i may have to zero the procedure is your entitle to a hearing on whether somebody is biased and i say marshall vs jericho i mean that's some there's an individual plaintiff here your client that has a sufficiently viable claim that this process should go forward i submit it now in this big record all the stuff i submitted  like two thousand pages it was a number of and i tried to look at it and it didn't tell me what i'm trying to find out i mean it may be because it was two thousand pages but i appreciate that but the judge wouldn't even consider it in other words yet but then why should i consider it he people let me in there tells me that there's really a problem that pertains to your client right here in there and i cannot give you because it's two thousand pages judge morris is the judge repeatedly it's it's an extensive record i didn't focus on it because i didn't think the argument saying that you know there was i don't think you guys are assuming ground is right that your position is we're causes something we should be picking up well i again your honor i don't and with other respect i think the prime officials showing it's supposed to be at he didn't see level they may disagree and if they disagree you may agree with them but the way as it was discussed in print the way it's supposed to work is the and it was literally a bias claim it was literally a bicycle in their general bias that we were talking about and there with the rd circuit said is in that case the the they sent it off the somebody to review this stuff and they said and that can be judicially reviewed and and that in a straight of ruling sorry i have not got it looking at the clock here from the government goes largely to what judge clifton was asking about so we have to go back to what exactly brown's assertion of bias here is he's trying to establish a specific a bias against him based on prior a l g that his his claim before us is not about the bias his claim is at the procedures certain at these argument that the procedure that's in place isn't adequate to address his claim of bias so  it's really arguing about the procedure he is arguing about the procedure but a procedure he didn't use while there he says there isn't a procedure which is correct and he he certainly raised his issue to the  that he raise it to the district court and the district court declined to consider it so there was no hearing on his and he couldn't have had a hearing on that claim correct isn't it correct under your procedure that he have the the the de q s addresses general claims of bias so there couldn't have been a hearing on his claim of general bias well his that's how i read the the internal regulations well with respect i disagree because he in his claim of harm comes from a specific bias against him that stems from this just look at the appeals council have heard they had had conducted a hearing on his claim of general bias my understanding is that they could have follow any of the paths articulated in that ruling can your point me to the document that says if he feels council can hear a claim of general bias well i don't i can't point to a document that says that exactly what my point is that a claim of general bias st to harm someone or someone to have an actionable claim under general bias they have to be the victim of that bias so he says he is the says he is but so if he was he was an african american claimant say and he says this ale j has a bias against african american claim that's generally so where where is that how is that claim process if he if he says and says as a result of this bias he was biased in the l j was biased against me and that's a claim that he could take to the appeals council and the appeals council could look at it to determine whether the l j abused his discretion in hearing the and could dollars piece as it will reef will review the claim to determine whether the l j has a general bias but that does not are not general excuse me will review the claim to determine whether the a l j abused his discretion in hearing a claim where he harbored a bias against the claimant now he to say that his picture it this way if a claimant says that dale jr is biased against african americans but that claimant is not an african american he still articulating a claim of general bias but he's not stating that he was the victim of that bias and he's logically speaking he would not be entitled to any any kind of relief on his claim for benefits based on that's not the case here right even as he was he does say that he has the characteristics that is generally biased against right and that's why i'm saying that this characterization of it as a general bias is kind of masking the issue the issue here is whether the l j was biased against mr brown and whether that bias stems from some personal knowledge about mr brown or whether that bias stands stems from a predisposition he had against a group of people the l j had against a group of people were talking about bias so there were a doesn't echoed his claim so in other words if if an african american claimants as the way i'm going to prove that you're biased against me is to show that in every case where there was an african american claimant use and integrating things and you found sense of being african american it was a different characteristic well if you can present evidence showing that he was that the a l j harbored a bias against him but i would look to the specifics of this case where he says he did and his us at now and in open court that in fact the two thousand pages is replete with evidence of the denigrating remarks against people on state welfare assistance i would disagree with that into the record he did not admit it but he made his findings on the motion to recuse and denied that and so the court could review his denial of the motion to recuse and his denial of that admitting that evidence in the record into the record so the claimant would then have a mechanism under four or five g the jurisdictional statute of the social security act to get that evidence before the agency on court order so the court could if it determines that that evidence is material to the claim the court could remain and for for consideration of that evidence however the evidence here does not rise and how would that work record make a new decision so in fact the l j looking at the admitting evidence because the evidence went to whether the it was biased against this sort of claimant and so so you're saying the l j could review that except by looking at a bunch of cases to look at one single case would never absent a really strong language be a sufficient way to prove it but if you could show that basis could this be excluded your honor i'd have to say it would have to be more than just the decisions it would have to be decisions compared to other decisions that are outside the characteristics that are at issue here there would have to be  some idea of whether that doesn't really respond to the question because the question is whether the l j erd in looking at a range of cases that didn't relate to the particular case before it because  indicates that's the only way you can show i asked whether it's cases involving prisons with that characteristic or cases of both types but but still you would have to review them in order to make the determination looked at i mean he discussed the records at length in the in his decision but he concluded that they were not material to the issue here because the looking at that evidence its decisions from his from prior cases for a short span of time handpicked by by plaintiff's counsel to try to try to establish bias we have no idea what happened with those cases on remain on this record appeal if there were any for all we know there were forty nine decisions properly against him then his i understand it there's no obvious route of administrative appeal the the the all the appeals it depends is characterized but all the appeals council can do you're saying maybe they can hold a hearing at least the regulations seem to suggest they have to refer it off to another group in any event there is no they don't treat it the same way they treat appeals on any other issue correct they review it under the abuse of discretion standard which is one of the standards that they review l j decisions on on the on the merits of a disability claim so  allegations in the notice order or decision so that they deal with it in the individual claimants case and that in addition they refer off to the division of quality service is there i confess i hadn't looked at it that way until i read your supplemental brief zero anything that illustrates how the appeals council has in fact process this kind of cl consider this kind of claim with regard to a particular claimant which point it would be subject to review there after and the problem here is that if if the appeals council doesn't in fact give consideration  it's theoretical in this case because he feels counsel wasn't presented with this argument but you're presuming that if they had been presented with this argument they would have dealt with it and is there anything that tells us that's the case well your honor presume that the appeals council acts in good faith and is there any other case where the appeals council has made it clear that it is processing and considering an adjudicating that kind of argument not to my knowledge your honor how can it be an abuse of discretion issue on the quit on a question of bias so you're saying it the way theoretically the way they could directly review it is say the judge did not abuse his discretion in determining that he was not by stats it sounds pretty funny to me it means doesn't it mean that  e never gets to be looked at by someone other than the very judge he's being accused the language of the abuse of discretion comes from the c f cards that provide jurisdiction but he appeals counsel to review and they all j's decision well i understand that but i'm just saying in this contest i'm looking at more from the due process constitutional aspect it's a it's so funny thing to apply to this kind of situation  but this is i believe th circuit law as a piece of discretion standard applies to motions theory and i believe that would be versus barnhart ok and that would be what we're dealing with here yale j was faced with a motion recuse but the evidence had little probative value backing up that motion and it did not reach this this court's stated standard of actual bias not appearance of of bias brown cannot show actual bias with this evidence and thus the l j properly excluded it if the council did have the authority to adjudicate the bias claim with regard to a particular claimant let the record or and before the able jay didn't include the additional evidence could the additional evidence be put into the record before the appeals council what is it the appeals council would look at to adjudicate the claim of the appeals council looks at the record but the regulations fur council review do provide a mechanism for getting new evidence or evidence that's material but not in the record before they can claim and can submit the evidence under  further questions then i'll ask that you have firm the district court judgment  that is beyond the scope of its authority such as has a pattern of bias or misconduct against a group or particular character and category of claimants it will refer to dick us so  government says that there is there's already and can ask them to get a review because you could you go to the ale j b l j denies the claim of bias in your case based on this general bias allegation and then you can appeal to the appeals council and present the two thousand pages of evidence to the appeals council which then can determine whether the ale j b is just discretion and not reach using in your client's case why hasn't the at sufficient well in  awkward but since he has nothing i've actually tried plus the alex that i was talking about says which applies across the board says you return the stuff you can't use i mean certainly seems to me to suggest that others beyond your authority sounds like it's beyond your authority i mean why would they have said and their example in this case what if anything did you present on this issue to the appeals council we didn't because this was a remained proceeding so under their rules you go directly to the court i didn't do it because both because of the s s r and because i tried it i would have tried but given the hallux given the s s r given that i had tried it several other times to no effect i did but again this is not in the record but since he was kind of saying you care i guess i can say