so we'll hear the benjamin case like to focus primarily on the th amendment claim in my few minutes today to establish his th amendment claim mr benjamin had to show two things st that the deprivation of medical care was in objective terms sufficiently serious and  culpable that he was at least subjectively reckitt reckless as the cases say we submit there are fact questions on these issues that should have presented summary judgment from the time that mr benjamin finals to notice all this looming assuming this was a significant condition what is what is the evidence on the record of deliberate indifference so i think there are several things st the initial i didn't treat him that day well so here's here's here's how it goes he does call him that he threatens not to treat him he writes an approximate prescription that is p r him now the policy is that it was not going to be jury concluded that it was also dr paul and that if there is or is there is nothing in the record other than that he had done done it before and i think the combination of the combination of the fact that it's dr poli amendment violation for a delay in an x ray when when the x ray was taken who's who was on the market will you i think you can see that in your opening brief that there was no exacerbation of his condition from the delay in the x ray  that is what the district court focused on i understand that but it's not the end of the day but it did make it worse to make the pain worse right that's right but it persisted persisted but again similar to the x ray when he got in the process  multiple points in the record where he says it's not working right he doesn't want it anymore so how can that be nathan then the violation if he was denied pain medication for five or six weeks that ultimately didn't help him how can that then you have two different things an x ray and a pain medication the x ray was on the mark boal in the pain medication didn't work so separately or in combination how is that even women violation objectively i think that would be the end of the day if that were the end of the story still suffering today but it wasn't because what happened as soon as he got that approximate and then the x ray was ordered and it very quickly they realized that more needed to be done he eventually got was the steroids injection in january after he got the m r i and so they realize that that approximates not working they continue to treat and eventually he did get something effective which was that zero injection so i think the  i gather the argument is that if he had gotten the x ray sooner they would have realized sooner that the stuff wasn't working and they might have gone to the m r i and the steroid treatment faster and that might have saved him some time pain that's exactly right we have what we have here is at least a six or seven week dead period where nothing is happening and where he's not getting any treatment and so on the record that once he got that steroid injection he never had any pain after that was that years ago but there is evidence and the record that the steroid prescribed which he also did tylenol and said you know what he said he also had back exercises weight loss if he had said initially in july you know what i want you to try to lose weight when you do these exercises i'm going to give you think it was only when that in approx and failed that that the doctors started to realize they were dealing with something that required a more serious intervention and so it was a necessary step in order to get that steroid injection to have to sort of have the trial and error process of in september and approx and fails ok let's move on to something else and eventually they go to the steroid injection so delaying that for six weeks did exacerbate the pain did lead to more pain for mr benjamin an appendix that page eighty which is dr polis note on the very st day that he saw the plaintiff mr benjamin in this case and that no is is indicative of the fact that plaintiff was never delay from the time that the order was put into when the x ray was actually completed it's not clear from the record what the cause of the delay was what is clear from the record is that dr polite was not aware that there was any unusual de lay in the x ray being completed until september st and when he was made aware of that issue it was rectified immediately and the plaintiff underwent the x ray seven days later is there any evidence in the record that he played any role in the scheduling of x ray no there is not  argument as you heard is that if we if it indeed is an extreme pain even if it's not being exacerbated and the jails he believes are treated with some type of medication that can be deliberate indifference to it's a factually specific question that looks not just at the level of pain but also looks at the underlying condition how serious it is in the abstract combined with these other factors such as the existence of adverse medical effects like if  condition were exacerbated or if the prognosis for effective treatment were diminished but if instead of eight weeks of pain it could have been four weeks of pain isn't with that stated point assuming the pain were serious and having had these back issues i know it's excruciating pain again your honor under smith it's a factor analysis so it looks at a variety of different things in this case certainly there may be a sort of is the argument the argument is that that is instead of an eight week delay in getting the x ray if it had been a three week delay even though it was inconclusive that might have led to scheduling an case that may be the circumstances here the record does not support that conclusion for several reasons st because it's not at all clear from the record that the epidural steroid injections ever actually relieved mr benjamin's pain in fact that were argument more than a year after the and the x ray and the m r i and the five different types of pain medication and the two muscle relaxants and all of the other recommendations that dr klein made the plaintiff was still complaining of serious pain and at oral argument he stated that the injections were not at all effective and that's on the record to thirty nine dollars in fact or argument the plaintiff noted that one of the st recommendations that dr pl i made which did constitute treatment which is back exercises stretches functional exercises which it would address the underlying cause of the pain those were the only things that were effective in alleviating his pain he also noted that he specifically wanted opiates or t h c pills that was the only thing that the his pain so alternately this really comes down to a disagreement about what type of care was appropriate here and that's not a constitutional issue the point of himself even noted at or argument that this was a disagreement over care was a disagreement over what type of pain medication would be effective with regard to the subjective prong the plaintiff's argument seems to amount to dr pli should have known about this policy dr ply auto have known that the prescription wouldn't be filled but this is negligence claim we're not talking about should have known or ought of known we're talking about cruel and unusual punishment and the only relevant question is what dr paul i actually knew from july th to september st and there's no evidence in the record that would create a disputed fact about whether dr pli was aware that there was an issue with the x ray or an issue with an approximate so for that reason even if the court could find the plaintiff establish that his the delay was sufficiently serious the point of couldn't succeed on the subject of promise as well  just very briefly with regard to the plaintiff's retaliation claim as judge meyer correctly found below claim fails both because there was no adverse action as a plaintiff wasn't actually denied medical care as previously noted plaintiff was provided medical care from day one whether he agreed with the functional exercises the approximate prescription of recommendation to lose weight isn't relevant at all still counts as treatment  and also the retaliation claim fails because there's there's just no evidence in the record that would create a disputed fact about causation or intent here ultimately the record before this before judge meyer and before the court today is one of appropriate and reasonable care provided to a patient who just disagreed with his doctor's course of treatment it's not a record that demonstrates deliberate indifference or a tally for all the foregoing reasons the defendant respectfully request that this court affirm the judgment of the district  just two very quick points your honor st the district court in its opinion did say that it thought that there were genuine issues of material fact on this being a serious enough medical condition for the member purposes and i think that was right i think  there is evidence in the record that there was tingling that it affected mr benjamin at night and that this was very serious pain and so at least on that aspect of this to court's decision i think that was correct of the court should agree th the nd point i just want to make is on the steroids injection and i don't think it would be appropriate up here at the court of appeals or even before the district court to take a statement at oral argument a year later as some closing this argument that because he was still reserve decision we will take a short recess