good morning and please the court my name is nils rosen qwest i represent the plaintiffs helmets and i'd like to reserve for minutes i think for republicans what we are asking for in this case is  on the s s i disability application based on two fundamental grounds one is that there is new material evidence of his residual functional capacity that he could not have introduced at the original hearing and frankly there were a number of defects at the original hearing largely stemming from the fact that mr scrooge has spoken english as opposed to his written english is chancy at best it was clear at the hearing that he had difficulties in the key feature in this kind of s s i litigation is that unlike most cases he only gets one chance at this came into the country under a grant of political asylum and while most immigrants are not entitled to any benefits from the federal government in the case of political asylum you do have a one time only opportunity to file for disability benefits he entered where carefully to your st point if i guess about the new evidence did any of the new evidence i recognize he says the heat for or for economic reasons he couldn't afford to get the reports earlier and that's his argument for good cause but did does the new those new records go to bullets hadn't moved at the time he had apply in this simply confirms that the main issue is dr ralph says no this is a retrospective report looking at his condition at the time he filed in two thousand and eight most of the that it appears that there has been some small amount of migration of the bullets from when the two thousand and four reports were done but he applies as of two thousand and eight and so the position of the bullets in two thousand and eight are largely unknown and so the cat scan in this case indicates that these relate to what he they ended up with a bullet where he's been through several yes but as to where exactly the bullets were in two thousand and eight versus the one medical report in two thousand and six in the one that was done for dr rao for my submission is that they are still roughly in the same place but given the nature of these particular court do you have any case in which that's been permitted i could give you the cite i did look it up in fact under the statute the request for new evidence can be introduced at any time including for the st time on appeal where that's a very in our original reply we talk about the general standard so i don't believe there was a case pacifically cited saying the st instance that ever came up was the court of appeal are you asking us to do that or you ask us to remain and remain ok so if we were to do that i think we still have another hurdle which is if the political act meant haven't moved how is it that we could say that there's a reasonable possibility that this new evidence would change the outcome because we would have to be able to show that as well because the evidence that came in at the problem is that because my client couldn't afford a comprehensive analysis the medical evidence that he attempted to introduce was scattered shot but in all of the medical evidence going back even to one thousand nine hundred and ninety nine in the surgeon's reports  fia indicate you've got a spinal problem you've got the bullets in these locations the reasons we can't operate there will be a problem in the future and dr ralph's report lays all of that out with modern lab results so examiner she didn't actually look at any of this or go into it she did a fairly perfunctory standard physical examination he was not able to respond to her questions well she disregarded it and she concluded interesting enough that she didn't find any substantial impairment which was the one finding that the ale jay rejected when he issued his opinion he said no she got that wrong there is substantial impairment ok i don't believe there was a cat scan any time previously there were some x rays in lotfi of there were some x rays but this was the st full cat scan and it showed what and it showed the presence of the the reports alternately referred to bullets and bullet fragments but show up on x rays council so i'm trying to give you the benefit of the doubt what is it that they got from the cat scan that they didn't have earlier i thought it was the look of the location of the bullet or the fact the location of the bullets and report pretty was primarily concerned with an ankle in the shoulder so that there was nothing done by any of the prior doctors that actually linked all these impairments together and did as i said no one did natural residual functional capacity analysis this is the only actual assessment on his residual functional capacity not even dr eric's did that there are other things in the hearing that i think just a fiery man there was a tremendous body of information that mr scruby had tried to produce in writing because he didn't do well verbal e but the record itself does not reflect a lot of reference to the things he produced in writing in fact mostly the administrative law judge relied on the hearing which was a very short proceeding as i didn't see anywhere in the record that your client communication skills were indicated as as lacking and quite the contrary the record well why don't you seek several languages he's attended college courses in this country he can write with the dictionary in his lap but communicating i don't think there's anything in the records that indicated that they attempted that much to communicate except dr eric's report what's the best indication there was a problem communicating i would say starting at the hearing transcript itself is there anything else if we look at the transcript for instance he had difficulty even administering the oath anything other than the transcript is what i was trying to get at i will go read the transcript but is there anything on the other things are a few look at mr scruby is written submissions i have they are a little opaque where he is going is difficult to translate there is a wealth of information in there but it is not readily apparent there concepts that he doesn't quite get his sentence structure is odd this court frankly was very indulgent in giving me extensions of time in which to file my brief because it was so hard to go through the record and so if you look at his actual submissions even his st motion to for a new evidence ran sixty five pages and it was not clear exactly what he was getting at what he was trying to get at however is that he had tried to present you know new evidence that was material but in sixty five pages single spaced that was far from obvious wasn't there evidence that he did in fact after he came to this country well work full time for several years the evidence was muddled the best in fact the ael j was starting to understand what the issue was and at the hearing and then for some reason came back with a different result the testimony f scruby is the way he came to this country he was assisted by two f b i agents and that they had obtained employment for him as he entered but the employment itself recognized his physical condition and so that he had special conditions attached to it so he could take to our brakes and so forth the che actually recognize that at the hearing and said i can give you the page numbers but basically said ok i understand the special circumstances on your u s employment so we're going to look at your latvian employment is your prior employment for substantial gainful activity so he actually said that at the hearing but when he came to the decision economy and the question is whether what he had done while he was here it demonstrated an work he hadn't done any work since the date he filed they found that there'd been no substantial gainful activity since the filing date his testimony previous to the filing date was that he had t jobs in which he one tried to act as a driver for somebody and the other job was basically reviewing records as a private investigator what your did you come to this country this is after he came to the u that were not generally available in the economy they actually allowed him to take two hour breaks and to take time off because of the pain that's two different jobs right in new jersey yes it was the nd one didn't last prior to coming to the u s and then this use at some point to that he was put on disability and lot fia so he was given some desk duty while he was in rehab but that would be customary with any injured peace officer and so they follow the same procedures we do here he was placed on disability received a disability pension and he was put on light duty he also had armed security twenty four hours a day right so so he got accommodations both in l subsequent jobs post and trains the united states right so is that right yes well so you experience that at some point the bullet fragments must have migrated such that he's now unable to do what he previously the to do yes but they that's since one thousand nine hundred and ninety nine he applies in two thousand and eight so our new evidences relating to where the bullets are as of the date he filed is not as of ninety nine and the bullets will migrate you know his condition is not going to get better it will only get worse but we're saying that as of two thousand and eight the medical evidence shows that that's where the bullets were and he was disabled at that time where in the record does it tell us his condition  and ten and they are saying that you have to be careful that was one of his concerns about physical movement because we can't remove them if they migrate your condition gets worse and given the report and says radiology report it appears that the boat has migrated from its prior location the assumption on the migration to be made by comparing the reporter for dr glass from two thousand and four change their point of d today is that you're saying that if we read me and i could have the opportunity to do this and he'll be helped so you're saying on this record they'll be further explanation that's the significance of it but don't we have to look at the material or  evidence that's proffered to determine whether it's material or not yes but we're saying the new evidence unfortunately speculate as to whether a doctor could shore up or explain this in a way that's not  briefing actually the standard on materiality is whether the evidence might or has a reasonable chance to change the outcome it's not whether as we sit here today it's outcome determin probability well actually possibility i believe to change the outcome in a new hearing reason and that will it would change the outcome right so how do we get there and i'm saying that this is the st comprehensive statement as to what has functional capacity was nothing came in earlier it shows that of all the listed impairments he is impaired and that if it comes into evidence and is properly examined by the a l j it could very well change his opinion from the fact that he was not disabled to client yes anything that is handwritten or script see or with tiny little print is filled out by my client ok anything further no we can come back we've gone over our time here by the appellant that he had serious language duff's it's not only unsupported it's entirely contrary to significant amounts of evidence which i will go through on a disability report the claimant indicated that he could speak and understand english that he could read and understand english and he did not indicate an alternate preferred language in his resume he indicate he was trilingual in law in english and russian with both verbal and written communication skills sufficient to translate documents between them and this is an exercise record to sixty mean he is different than other socialist party applicants because he's an asylum right and so my understanding is that there's a seven year window for him to apply but can you fill me in on whether or not he's in a position where he'd be able to go back and reapply i'm not i did not research a specific question on whether the special status of asylum would prevent him from reapplying let's say it matters a lot because there's a question about whether there was an abuse of discretion to not consider this new evidence and so that's why i really need to know whether or not he's foreclose from going back to reapply i think it's pretty clear he could only get benefits for a seven year period but i'm not certain on that specific question honor but to address the underlying question the the reason is not material in this case the new evidence was several reasons one all the evidence post dated the l g s decision so the question isn't that whether he would not be able to apply when i was whether claimant met his burden to show disability it was actually is whether the evidence created at a later period but it relates to the earlier perry right yes your honor so that's not preclusion and overall everything that the recent doctor said it was in pretty much in the present tense his last statement is this goes back to nine hundred and ninety nine yes one of the the problem here is that that is that statement is entirely unsupported by the evidence in its entirety st dr ralph did not see claimant for the st time until after the security guard and loss prevention positions furthermore there was a lot of issues about whether or not there was imaging and other scans were not available it's simply not true the evidence is replete with different scans both  going to the claimants functional limitations but also the location and position of the bullet fragments were there earlier cat scans there was a c t scan done on may two thousand and six showing a remarkable displaces normal nerve root no spinal the sake of argument that the later shown evidence that has worsened it would not have been disable until after the l g funds now these words it wouldn't relate to his condition as it existed at the time of the hearing precise your honor and this is why i want to point out that claimants counsel stand every one and a half hours because the pain would be exacerbated by being in one position for too long an opinion that the l g gave considerable weight a consultant referred to by treating physician pre though dr macho found that despite claimants abdominal directly contradicted by the fact that he dressed himself quite quickly after examination dr eric didn't say if you read it work carefully what she said was he put out his s objective evidence failing to support claimants i'll get disability the history of conservative treatment and the range of claim and feel activities which i could get into in greater detail if your honor wishes me to but the exaggerate statements i think the l g drew a reasonable requires i don't think there's a specific since it doesn't go to the timing of this new evidence but just requires that to be material which means it must bear directly in substantial the matter in dispute and it is the government's position that this new evidence from dr ralph having occurred entirely after the decision having been contradicted by claimants own work history and frankly by having finding me i'm making findings that are contrary to earlier imaging and examination findings instance i think i would defer to the we do discuss the inappropriateness of attaching this new evidence in our brief and i think i would defer to our written statements i'm not aware of any specific instance where an a the reporting recommendation was issued on july th two thousand and fourteen and at this point that had already covered the period of the new evidence the st time but that's a whole different question suppose you had really good evidence for the st time that tipper changed the regular period and i'm trying to answer and i'm not aware of any instance where the court has you know stated or allowed such an admission in for the st time before the  appeals if this panel has any other questions i can go and briefly sum up or otherwise what is going some sure in this case i think what is important to remember here is that is not a question of that clemens had this injury i mean we know that there's the bullets inside from an old injury from like ninety nine the question is what the functional limitations caused by those bullets we have evidence from five physicians as well as objective imaging scans within two years of the oceans in twenty  showing that claimant could still perform work activity and that the l g actually assessed a more favorable residual functionally to a claim and that is more limiting than even the physicians found and for that reason i respectfully urge this court to affirm the discourses in finding  thank you i'm going back to judge a person's original point on the subject of the amendment the cases that we have found so far indicate that there's broad latitude as to grant an amendment if you meet the standards under the statute of materiality and an availability at the time of the hearing what i would add on top of that is in general in s s i disability cases there's a very liberal policy in favor of getting it right which makes for a liberal policy for re man the liberal policy for amendment and this comes in the th circuit credit as true doctrine to the extent that if new evidence shows that benefits should have been warded there will be credit is true and awarded without a further evidentiary hearing that's not true where there is a question as to the new evidence and what its effect would be any hearing and we cite to one of those cases but in fact the policy itself is a liberal policy to allow the record to be reexamining corrected i would be happy to submit a post hearing you know let her brief on the subject of if any appellate court did actually done it in the st instance it is our position that the court has the power to do so whether in fact they have done that frankly usually counsel comes into a case like this before the district court has shut the door so i learned that i just have one other question if i might going back to the point that's that's bothering me he cannot if came citizenship or or works four thousand and forty qualifying quarters if you can reapply under if he has forty qualifying quarters yes he can reapply he is actually a citizen but he doesn't have the necessarily employment became a citizen this summer ok so what's the best support you've got for the statement you open with a top of the hour that he has one shot to apply for these men because as an application under political asylum there is a window for your st seven years you're allowed to make a one want to be going to the point but what's your strongest support for the notion that this is a one time only deal for him and he cannot reapply because as we briefed in the stated the statutes in the opening run where he is a political asylum you are an exception to the ordinary the political asylum provision so and i recognize that there's a seven year duration durational limit but i'm asking a different question and maybe you've answered it to the best of your ability and i'll go back and double check but my question is whether he can reapply not whether you which has the seven year limitation but in response to my colleague's question just now you said that he has been granted citizenship right so what's missing is the qualifying quarters of work correct he was not a citizen at the time we filed  now but now he is a us citizen within the last two years all this also means that he gets the proper quarter some work he can reapply it he doesn't have any proper quarters and he is not eligible for them because they get food from his status as an i c correct well he was disqualified at the time he filed this thing has been going on an immense amount of years so i understand his status as an adult i mean that's one way of looking at it and the other