decision with reasoning that meets the legal and evidentiary standards mr pheno is a military veteran who receives all of his care of through v a medical facilities and the v a found him one hundred percent on employable based on findings from a compensation and pension examination is that the part of the record that you continue and was not adequately developed the v a rating in the accompanying records it is it actually it actually comes down to  separate arguments first is failure to develop by either by obtaining the c m p d examination report which is not in the record however it is there are objective medical findings from that examination which are summarized in the v a rating decision and why wouldn't that be adequate for the whole j to come to her decision our position is that is adequate or would have been adequate but unfortunately the l j did not just a little bit ahead of me which would make sense because i'm sure you know the record better than we do but but i there are medical summaries and at the top twenty five who prepared the summaries as progress notes in really bold print and medical summaries i can i can turn them in if that's helpful to but but but here's where it pops up for me there's sort of three or four different in trees and medical records that make quite clear that that diabetes for example was not controlled right correct and then there's a medical a health sciences health summary and in the health summary it indicates somebody else's is going has apparently gone through his records and say is mentions of diabetes and says two or three times that there's no mention of complication and that it is quote not stated as uncontrolled which seems to be demonstrably incorrect and i don't know who created these summaries is that from the v a that that is from the v a and that is separate from the c m p examination findings so we do have an argument related to mr  not believe has been found to be a service connected impairment ok so getting back to wrong questions i think my kind of overlaps hers i'm trying to figure out what was missing what they relied upon because as you said the v a if it was disabled so what's the overlap their compensation and p examination is a comprehensive physical examination that the v a sent to mr pheno for and that was conducted in august two thousand and eleven right that examination report is absent from the record the v a rating decision does summarize subject of radical findings but the report itself is absent when used as report to do so my office attempted beginning and april two thousand and sixteen when we began representing mr pheno we contacted the v a to obtain a copy of the report and we finally received a copy of that report in march of two thousand and eighteen so it took almost two full years and this is really the problem and i think the core issue is that there is nothing in the algaes decision to indicate that she considered the objective medical findings as summarized in the be a writing decision and the commissioner seems to have taken the position that they could have and if so you see that i haven't seen it as part of the record that we are before us is i'm sorry the report is not before us it is not within this record we have seen it i have seen it and your position is that you want that report to be before the a clarification i see that there's an onset date but i'm a little confused about whether it was correctly calculated and light of the fact of the something in the record that he received additional income i think about three thousand dollars for a few months after the so called onset date so i don't know whether or not this has to be clarified if we want to remain and right but i'm confused right now on the record as to whether that really would have any thing to do with the correct so it does not have anything to do with his disability onset date he he reported at the hearing and in multiple places in the record that he stopped working in january two thousand and eleven and there are earnings from the first quarter of january two thousand and eleven when he when he wrote a letter to the appeals council on represent that unless presented because they all j used those earnings to discredit his testimony he explained that he was paid vacation and sick leave pay but was no longer working so it's not about that yes for interrupting but right there i have i have two four seven a declaration from him and it says i received three thousand five council so after the l j issued her unfavorable decision he was under represented at at the time of the hearing he was represented by a non attorney that non attorney representative withdrew and he was under represented and  which is the agency's appeals council after they just session after they've come so close to the district court and now we're here ok and so was he asked at the hearing about what about this reported sorry yeah what about the reported income that showed up in the first quarter of twenty eleven was he asked he was and there is some confusion within that testimony he first clearly states i last worked on january second two thousand and eleven and then the day starts to ask him about income from i think it's t painting or premier painting company or something to that effect and that is the early january two thousand and eleven income that is on his way to report but that testimony becomes a little bit it confused i would say he is stating different years and it's not clear it's at least not clear to me it's not clear in this record that mr pheno understood what she was asking about january two thousand and eleven income and after she issued her unfavorable decision he did write to the appeals council to clarify that there's nothing that he didn't have earned wages is what yours i think what i'm understanding did pay him right some vacation time or whatnot they paid him a decision not supported by substantial evidence if the a l j could reasonably interpret the testimony in the way she did but your honor has to be clear and there's a legal standard and a to ensure a standard and how to be clear and convincing and it also has to be supported by substantial evidence there is nothing in this record to indicate that mr pheno worked with in two thousand and eleven he recorded add multiple times  only up the hearing but also in his initial application that's at page two twelve of the excerpts of record and within his testimony and also in a separate document before they all j hearing  that every time he reported january two thousand and eleven as and date his and working date and that's also consistent with the v a is finding the v a found him entirely to say bald as i think early february two thousand eleven they found that he was no longer working with counsel the v a is not bound by the v a s to terminations would you agree yes that is correct and also the objective findings that are made in the v what case authority are you relying upon to support your argument that the objective findings in the v a report must be considered as part of the objective medical findings treatment record the full treatment record for example there is as you mentioned clear evidence that mr few knows diabetes is uncontrolled but within her here at her decision she considered it only at step two stated that h diabetes was controlled with medication and accounted for no functional limitations for that impairment and her decision she did not make any inquiry at the hearing related to diabetes and  fifteen thirteen a one but that is not in your brief i think to about point i would say that the a l j was clearly are required to consider the v a rating decision and ordinarily should afford great weight to the to analysis not only did the record evidence from the providers who are involved in the so security process but also the of the findings that are made by the v a but your honor our cases mccarty does have and i understand your point but to my point in this record and v a rating decisions take different forms i'm sorry i've seen them in different ways this is a rare case i would say where the the objective findings are actually summarized within the decision not consider those findings from that is contrary contrary to its own regulations and i did not base my argument around that regulation i based it around mccarty and the clout with regard to the v a rating so we can disregard this regulation authority that you used to support that argument i apologized i feel by framing the arguments and in his different fashion i did not raise that on the regulations i did base it on mccarty which states that they morning honors michael howard for the commissioner you know when someone claims to have extreme back pain and that their legs would suddenly give way because of nerve impingement and that they would your need for difficult themselves on a regular daily basis agency regulations require that the l j consider these extreme claims in light of the entire record in this case mr you know your record wasn't considered that's the problem if your honour's asked about the v a examination yes i had i don't know a disability rating must be considered an ordinarily must be given great weight together with the holding in a case i can't pronounce on a petition that you know adequacy of the record to allow proper evaluation triggers a duty of inquiry so why is she but had not obtained it in this case the v a the l g had the rating decision and that rating decision summarized the various clinical findings data from the v a no your honor i would have actually several responses to that to that line of argument or that question first of all i think as an overall matter kind of backing up from what from the from the that that shows up there was a positive straight leg raise test and slightly diminished strength out of four out of five level and diminished reflexes that were not clinically significant and that's that's what the v a report itself says and it's the evidence of v a found significant and when we just consider what that actually means that is actually not that significant and damaging to vale jesus isn't we only have basically one isolated straight leg raised test that's positive in the entire record in a case where someone claiming to have such severe nerve impingement that they would fall and your name death case themselves on a regular basis so as a general matter this is a case with very reka objective evidence and the one report that mr pheno saying is head on here actually has far see i mean that's what really puzzles me just seemed that you would want to take a look at that we boy well i would have a couple of responses to that question your honor the first is that the v a rating decision summarizes the findings that the v a found significant so those appear to be the significant findings it's unlikely that the v a also found that he had severe neuropathy or something like that and then did not noted in the reading decision also we don't know what's in there you know at some how did the v a rating decision the social security administration requested these records from the v a and obtained this is what social security obtain and even as  mentioned a minute ago that she's hanging her hat on one missing report but what about the m r i that wasn't available at the time it does seem to have medical evidence and it wasn't available then but it is now what do we do with that you know i would have a few responses whe  and that i mean i have an overriding sense that jay had problems with this credibility and obviously didn't like him whatever reason but he seems to have problems from head to toe the  mentioned i believe he did say he had an m r i coming up like i did not end up having that in the record but i would argue maybe under a different set of facts that would critically undermine the decision but if we look at the actual facts of this case that is not the case well you know they ask for the appeals counsel to develop the record right if it's not decided i just wonder whether or not it was available to the appeals counsel whether they knew about it at that time i don't you don't i don't believe the appeals council knew about it i would have to check so i don't know that but in any event it was brought to the tension of the district court i take it and the i had been taken by that time right yes your honor actually i believe i misspoke when i was just answering your question mr pheno i believe did submit that  and the appeals counsel said it pertained to a letter later time in our briefing i would just we did say that because that seemed to be an error saying that pertain to a later time that really this should be considered under the bruce standard from the ninth circuit which is where we just considered this is part of the record as a whole and whether undermines the old days that it had this so much here this person had problems from head to toe you had this incontinence you had this diabetes determination it's that to which in my lot he has as unresolved that troubles me at least well your honor you raise several good questions there as far as the m r i of the shoulder it's important to note and we made this point in our brief that the l d did have evidence about that weight lifting shoulder injury that g always needs to close the record on the side of case and the issue regulations agency regulations as a general matter leave these issues up to the jays discretion about developing the record i would just like to explore for a moment the distinction between considering the rating decision and the underlying records of the our case authority does not compel consideration of the underlying record i would completely agree your honor the when we look at the distinctions a court has drawn and this isn't in various cases over time and i believe the turner case was cited in the briefing and there's also a more recent case of marsh wishing is directly at issue in this case but what we've seen is that the court is has not required the algaes to wade through the entire hundreds of pages of medical records and discuss every single examination finding in the decision but sometimes a treatment record can be so material if the doctor saying well this person can't lift more than ten pounds and therefore can't go back to work sometimes those comments will be hidden in the treatment records and then the elders should discuss them but there's no requirement to be able to not forgiveness i agree with everything you just said you so so if i were tracking but did you did you think there were not in consistencies between that summary and the record that they did have that sort of record for their exploration is that your position your honor i would i would say just about that mr pino overstates how significant those with the response that you gave to get drawn to this question i think we're clear on my question is in this case did you think that there were not inconsistency that required for the exploration so you could say it was in a position to assess that and provide the re one employability and did discount it so we would argue that that satisfies the court's standard if there are clinical findings mention in that rating decision which vary somewhat over time that's entirely forseeable and we would not see that as changing the objective evidence would be particularly compelling in this case just given the fact that he's making extreme claims and that these are the underlying objective findings are very benign or or even are just more equivocal and they don't show the signs of severe nerve impingement in his legs that would cause things like incontinence and the reports of even incontinence are far more equivocal on inconsistent than mr penis testimony would suggest ok thank you for your sponsor thank you for your patien your honor as i might just touch on one more point just briefly the issue of diabetes which i do not i believe your honor raise briefly and i did not address the it just i think i think maybe the briefing on both sides could be a little bit more clear on this issue that the elderly did in fact find that peripheral neuropathy was severe at step two and then the l g did discuss that under the residual functional capacity talked about the treatment records but then the elders still had three medical opinions in this case from an examining physician and two non examining physicians saying mr pheno could do medium work and there's no contrary opinion from any treating physician and for those reasons we would say that the more than adequately discussed the issue of diabetes and otherwise the really what the field is pointing to is that the neuropathy in the feet which again is not a consistent finding in the underlying medical records and does not appear to be as severe as he claims at the hearing but that's the only real way the diabetes has little limiting him so far he has not although he makes a general claim as diabetes causes other limitations he's not pointed to other injuries to his various organs in his body maybe he had a lawyer by the bit of better record i don't know what about incontinence how was that taken restroom in the workplace and throughout the decision of the elders discussing the fact that while at the hearing mr if you know saying he is your named after him self on a regular basis and would be unable to even do a desk job with the underlying treatment records are show him denying many of these symptoms over time he's does not he's clearly denying balun continence he's occasionally complaining of your in error issues but the way he presents them to his doctors is that it's related to medication so sensibly if this was an ongoing issue related to nerve pain and other things this that's not how he would present it so your response is that the medical record contradicts his description of the  limitations based their opinions only on dr burnaby findings and the c m p examination report nor the v a rating decision which summarizes those findings was not made available to those reviewing physicians i'd also like to note just but mr diabetes became uncontrolled and worsened after dr burnaby and after the c m p examination so the treatment records which the l j did not clearly consider or summarize and her decision indicate that his his diabetes was significantly worse and as of around january two thousand and thirteen which is a later period and there's also the injury to his left shoulder which is a new impairment so for the commissioner to take the position i guess that dr wanna be's examination report would be sufficient doesn't take into account those impairments wished worsened or he sustained from an injury at a later time so the twenty thir n date was that after the him no your honor that was before the hearing the hearing was and that january two thousand and fourteen he received treatment and continuously requested treatment for his shoulder impairment and an had a nurse who came and provided a home care program for him she actually noted bladder dysfunction as well and noted that he required assistance with things like dressing  and grocery shopping and other activities of daily living and it's i guess i just want to note that the most important thing before the score is the l g s decision and none of that has made its way into the l g s decision it does not clear that she fully considered the treatment record