insurance benefits overlooked or ignored the only medical evaluation in the record and also failed to develop and interpret that record in accordance with the rules that were that if if mr banja engaged in substantial gainful activity both before and after his date last ensured that  that means that under step one he was not disabled at the time regardless of what the medical reports or what the medical consultant w that's that's true in the abstract in other words if if a person is not disabled that's step one then there is no there is no resort to step two that's the end of the analysis but that's certainly not a determination that this court could make here because there are no findings for the court to rely upon and the critical piece here is that determination at step one is not limited to simply comparing a claimant's earnings to the earnings thresholds that are set out in the regulations that's the start of the step but it's by no means the end of it and here for example the the earnings that mr mr banja obtained from his work at the the ticket delivery service there is ample evidence in the record that he could rely upon to establish that those wages were earned under special conditions and they were they would not then be counted against him that's step one on page twenty eight of the commissioner's brief she concedes that this is a step two case it's not a step one case and it because of the trying to read doctrine because this court's review is narrow in the sense that it address the steps in the first instance that's for the l j to do the really the only question here is whether there is any evidence of a medically determinable impairment it's not severe ready that's what the  determined so at page twenty five of the record the a l j says in her in the beginning of the step to discussion the l j says there is there are no medical findings there no medical signs or laboratory findings to substantiate an impairment the entirety of her legal discussion is about the prerequisites to establishing an impairment there's nothing about severity on page twenty six she says there is no evidence of a medically determin e impairment she cites dr murat for that proposition and concludes that mr bonding is not disabled under the regulations because there is inadequate evidence of a medically determinable impairment that's the stated basis for the agency's determination and that basis is indefensible for precisely the reason that the court suggested in its order appointing counsel those school records and in particular the nine hundred eighty nine evaluations conducted by doctors safer and blumenthal are object of medical evidence they are in the record they were pretty determination that he was not disabled fired two thousand under the other provision  right i'm looking now at the term earlier determination that he wasn't disabled i guess was under title sixteen on prior to two thousand so is that accurate that's not accurate you're out of the title is it will what was the determination the determination is that he was under title sixteen he is disabled from may two thousand as of may two thousand and nine the date of his application so that that application that request was granted that ok was determined with respect to prior to two thousand but title two determination was denied on the ground that there was insufficient evidence of a medically determinable impairment the same ground that the a l j relied upon and so what but you have to show an impairment prior two thousand sufficient evidence are you going against what was determined before the two possibilities i guess i'm saying both at the very least the l j did not either didn't consider or didn't adequately address the only hundred nine were were not recovered so the only medical yes not attained any of the records from prison medical records none of those none of those records were obtained that's correct your honor you're pretty good so in other words efforts were made to get the records and they failed that that's correct your honor in our view insufficient efforts were made and you're absolutely right that it is a dual responsibility of course the claimant has a responsibility to present any evidence that he or she has to sit for consultation of examinations as mr bonny did and to attempt to assist in the obtaining of the records and of course mr barnett was represented by this court's precedents hold that the a l j is duty to develop the record does not wax and wane depending on whether or not the claimant is represented by counsel it is the l j is ultimately sponsibility to develop the records that she needs in order to make a reasoned decision one with substantial evidence yes as our eighty three twenty yes my reading is that the council yes i think that's i think that's correct but it to the extent that your honor is implying that there's a way for failure to raise that argument i would strenuously disagree for much the same reason that i would disagree that it's  his fault that the medical records are not complete here the nature of the administrative proceeding is entirely different from standard federal court litigation it's an inquisitorial proceeding the l j is not relying upon it does not matter in in two ways first it doesn't change the ailed jay's obligation to apply eighty three twenty at the time in fact the new the new ruling eighteen zero one piece specifically says we expect federal courts to current right that's absolutely right your honor and that would not be a futile gesture because eighteen zero one piece still requires the l j to at least exercise her discretion over whether or not to consult with a medical advisor and here the commissioner has not disputed our argument that the l j did not exercise her discretion in that respect there was no discussion of that rule no indication that the l j applied that rule at all and in that respect it's much like the johnson case where the court was presented with a situation in which it simply was not clear whether the a l j had applied at the treating physician rule and so the court said we're not going to speculate about what the commissioner might or what the l j might have done had that ru applied instead we're going to send it back because this claimant is entitle to have her claim decided by the a political legal principles and of course as you point out the a political legal principle will be eighteen zero one p and not eighty three twenty now but the new ruling is really not all that different yes the changes must to discretionary but the ail j still has to exercise discretion it still says that if a person is disabled the l j must select an onset date and it still says that recognizes that the onset date may very well predate the earliest medical record and in order for an ale j to determine that onset date eighteen zero one piece says you should look at the nature of among other things the nature of the and at that time there was a determination no you know the disability well i guess what i would what i would say in response that this is this is essentially the argument that the commissioner has has raised my my response would be that i think it's it would be entirely arbitrary to draw this distinction between in one circumstance if the state agency examiner says you are disabled now but you were not before then there is no resort to eighty three twenty at all even though you have an established present disability one that in this case the l j heartily indorsed might determine that there was an onset date that predated two thousand that's right what i'm saying is the question arises when you have a claimant who has who is presently disabled and then the question then becomes ok is that present disability did that arise when that person was covered by disability insurance right so what i'm saying is it doesn't make any sense to draw distinction between a case where the a l j herself finds the claimant presently disabled or a case like this one where the state agency examiner finds the ael j presently disabled i'm sorry the claimant presently disabled the nail jay says yeah i agree with that but i don't see any any medical evidence of any object of medical evidence of an impairment i just think that if the court in particular looks at the one thousand nine hundred eighty nine evaluations in conjunction with the rest of the evidence i see no way to conclude that  had no impairment at all on or before the d l i understand that there are other questions about his claim i'm not suggesting that this is a case where the court should simply remain for calculation of benefits but those are factual matters medical questions that need to be addressed in the first instance to the l j on remand thank you let's say that for the sake of argument that we were to agree with you that the evidence suggested that this was engaged in substantial  rule on one of the alternative bases in terms of how can you i think the answer to that is that she reached the decision that there was no disabling severity not in a bubble but looking at those the only records that we have so those twenty five pages and even in those twenty five pages we have glimpses of what he was doing at the time it's not just your medical records he's being evaluated by a psychologist for the purpose of being in the program so there are they're evaluating him in terms of vocation and what he can do and what his interests are and it what you're just saying right no and she doesn't have to under the law she referred to the the report she can carefully consider it there's no reason for us to determine that she did not carefully consider it because it's in her opinion and records from the rikers island infirmary that's that was the drift of what she was saying and that the elder was saying that the ok was intending to do  i did not find an indication in the record that that that did or did not happen i did not see one ray other but i know that in that same conversation and i want to stress that during the hearing he was represented by a very experienced and christopher said the records will follow him from institution so i will subpoena the last institution that he was at and he had already she had already subpoenaed the  chateau de institution and i think he made the promise that he would look into getting the records from the lincoln center which i think was the halfway house so again it is a dual responsibility and she did send out ten nobody really seems like it's it's realistic to get these records they're talking about how you know your name disappears under the website and you can't even find the retention policy in these  institutions that is after a period of time they don't have to be retained anymore just as a matter of ordinary ministration i don't know each policies or each institutions or tension policy but i have seen it as ten years which would make sense when you talk about impairment and impairment as i understand it is a psychological abnormality isn't that abnormal it isn't it does not reflect normal but that is not sufficient to be is year you know medically to terminal and pearman i think the q evidence is really inconclusive it does reflect borderline intellectual functioning but the regulations even recognize that persons with a lower i q may hold a full time job and not be disabled if their adaptive functioning is sufficiently or if he was sufficiently impaired so that he again it's really intertwined in the fact of of the work and here we know that at the time of the i q test he was working on the weekends in the year prior he made i think it was in the next year working as a longshoreman he made eleven thousand dollars or eleven thousand dollars she did not find an onset date because she did not find it and in sufficiently to severe her disability the one was  there's no one said that we don't even know when the onset date because how can you find it on that date for a disability that doesn't exist and she wants some point there was a disability right right but it was after the date last insert year when the when the finding one way or the other about an onset after that right and if the government's position that we did not need to make a finding because we were looking for a disability for the date last insured and at that period in time there he suffers from severe psychological difficulties including bipolar disorder right i know that there was not a finding based on the bipolar disorder but that he isn't mental  that qualify as a disability as a severe psychological difficulty ok now the school records apparently indicate that he had possibly related mental health problems in high school hundred nine doesn't even follow him the full year doesn't do his first year of high school it's just this eleven twenty five i think among psychologists i gather that they tend not to wri about mental health problems i don't think they're so conclusive on any mental health diagnosis and they mentioned anxiety depression and i think those are common to seventeen year olds and the testing is not fully explained we don't know if if they he did not meet with a medical expert aside from the state medical examiner who did not have those records and front of her at the time that is true but she did not have an obligation to do so and i think  there just is not enough in the school records for her to say this has been going on for the past twelve months as it must and you know and i think expect when you consider that with the fact that he had been working on the weekends and working right and she considered it and that includes his claim that in prison he was placed in and treated for bipolar disorder right that's his his testimony it's based on what he psychological history was not credible refinding to that effect there is not a finding to that effect though there are contradictory statements in their record and you know the standard is that we don't made subpoenas were sent to the institutions they came back saying that we don't have we never had an inmate under this name we know that the name is not piling up so i think an effort was made i think it was a sufficient effort and i think these records likely don't exist and  just a few quick points in rebuttal every single argument that is made in contravention to mr by news argument here is an argument that is different from the argument that the a l j made from the rationale that the l g gave the court would have to contravene johnson melville burgess colleville that entire line of cases in which the court has maintained a very disciplined separation between this cour role and the role of the l j for important separation of powers reasons because of different institutional competencies and so on so every time that the commissioner talks about earnings or every time the commissioner talks about severity or talks about the durational requirement to establish disability not one of those things is a basis that the l j gave for her determination i understand the temptation to look beyond and try to predict how might this shake out but it's really not severe and non severe severe sounds like it's very serious but it's really not as the court has interpreted that regular regulation in order for it to be a valid implementation of the statute it needs to screen out only de minimus only de minimus claims are only de minimus impairments here i don't see any reasonable argument that he did not have serious psychological problems as judge joe brown has pointed out highly pathologic testing testing indicative of severe pathology profound personality disturbance borderline i q and on and on and on so with that respect i urge the court to to concentrate its focus solely on the l g s determination with respect to the subpoenas yes subpoenas were sent out yes mr bowser was enlisted to assist with gathering the records but if it's not too much to ask the l j to send subpoenas i would think that it's not too much to ask the l j to demand an adequate response shadowgate said we don't even know who this guy is that's not it's perfectly reasonable as miss apicella pointed out for her to delegate some of her responsibility to mr bo's he says i'll do this but i still think that she needs to follow up with him before she writes a decision saying we don't have enough records and that's particularly true in this case given the disproportionate not disproportionate but the enormous weight that she placed on the records during the d l i period miss apicella pointed out in part of her argument the prison records would be helpful they most certainly would be and in fact during the first hearing the l j said i can't do anything without those records mr banja i need those records and yet she then wrote a decision denying his claim without doing all that much to follow up on her demands for those records so with respect to the bipolar disorder three eighty five of the record dr morag who is the psychological consultant indicates his medical records substantiate a claim of  bipolar disorder and so to understand if you're if you are trying to figure out what is the onset of this man's disability we know he has one we know he has bipolar disorder he reported he wasn't reporting his symptoms in a shop your thought certainly so he doesn't he doesn't merely report his symptoms he's reporting a diagnosis that he received and that diagnosis would be in the record had the prison records been secured thank you very much thank you thank you both for your good arguments the