appellant your honor since case involves two significant legal errors by the administration by the government in deciding social security cases and i was looking for something kind of encapsulates the reason why this case is so important and it's so much more important than just an indifference of a woman who was abused and broker ankle and alleged a period of disability it's important for the reason that this court has held repeatedly and the princip of that the reasons are the handmaidens of judging in decision making that every court must issue reasons for its decisions that there might must be some basis in fact evidence to make a decision the record in this case was grossly insufficient at the time of her hearing after trial the judge prior to the trial should say the judge was fully aware that the record included evidence that she had reported that she had received medical treatment through the medical center of louisiana through the interim system that she had a major reconstructive surgery done in december of two thousand and eleven she gave the specific date of the surgery she gave her medical record number she advised the administrator the she advised the trial court that she had been receiving treatment at elysee for some time  they'd the judge at the hearing contin despite that evidence repeatedly asked her where she was receiving treatment even after she had initially testified that she was receiving treatment and had in her words a major reconstructive surgery adela's she one december of two thousand and eleven the judge then asked her where she was receiving treatment he said i have a couple of problems there's no evidence that you're receiving any treatment of course this despite the fact that she had already previously advised them in both written and oral testimony that she had indeed been receiving treatment the record shows that social security sent to requests for those records that were not answered  apparently missed some than taint an attorney the attorney was able to i don't know how easily but to get the records and if you were the one to obtain those records why the discrepancy i don't know they sent two requests neither of them were responded to apparently neither of the requests were sent by the judge but rather someone in the judge's office in and identify the judge neither of them i also know your honor says that they didn't include her medical record number on them but moreover is that after your you dis legal reversible error along the lines of the rose a decision committed by the ok or are you alleging to perfunctory treatment by the appeals level the judge failed to fully develop the record ok but but but that runs into our higginbotham case because by the time i guess you step in the record is perfected and it's fully before the appellate panel yes but the appeals council issued no findings whatsoever their decision is merely a boilerplate it contains not one scintilla of fact relative to the evidence which was submitted to them that the reversible error that silly or rather well absolutely ok but but that's break this down a teeny bit because when i look at the se as i think it's fifteen twelve the burden is on the he meant to bring the medical records but then there's the corollary which is the judge should assist and should help so in this case if she didn't bring it to the records he starts probing verbally and there's miscommunication then the attorney gets involved in the record gets perfected no one's really to blame she couldn't fulfill her see a far judge didn't get that was further sent to letters so really the only legal error isn't some affirmative duty to get records for a claimant who has  responsibility to give the records over the rim the error that would have to exist would be the fifth the appellate level not to sufficiently discuss the records once they've been got yes they do agree with that so so this is an  not a failure of affirmative duty case absolutely absolutely absolutely agree that i agree that it's and it's an eps case in that sense the appeals council was duty bound under these facts given the fact that the record was not fully developed to evaluate the evidence in some way nine seventeen be requires that the appeals counsel not only does consider the evidence and they merely regurgitated the word consider in its decision but it must also evaluate the evidence and undercut the e case the new evidence was explicitly contradicting the the o'jays ruling so that context you could see why our court would say you've got to discuss it but here yes here you know what it what it shows i guess is gets into the real factor with difficulty or somewhere around about here she began to walk without crutches is that that's fair to say that's fair to say and in fact she told them somewhere in here the facts are arguable it's not it's not conclusive one way or the other it was an issue of the trier for the trier of fact the judge has to investigate that and to make a finding as to the listing and when she returned to effect the new records don't conclusively show ala j rely on her statement that i thought i was walking in may that's a year why isn't that substantial evidence well consider this she told them probably in may  fact to clarify she said i had i stopped using the crutches after my last appointment probably in may however the fact is her last appointment was in actuality in june in april the x ray revealed a nonunion the fracture a reasonable mind would conclude that someone would have significant pain with ambulation if they still have a non union of the fraction surgeries december shows still nonunion yes and she also reported on my dad on a form where she advised the judge of her treatment where she advised the administration of her appointment dates etc and her medical record number that she was unable to walk with the boot she could begin that weight bearing in april begin weight bearing but june of two thousand and twelve and then it's arguable after that because he still required two months of therapy the book was removed in june but the l g found that there was conflicting testimony to make a finding that she testified the boot was taken off six to eight weeks after the early january visit and he also had these credibility problems with her testimony to how do we factor all that into the i mean the credibility analysis by him was based on a misstatement of fact the credibility was not in treatment i am discrediting her on the basis that she did not receive appropriate care when in fact she did when in fact he was aware of that but it was also based on her statement in directly i was walking by men probably by make that her exact words were probably by may i was not using the crutches but she was still in the boot and she testified that she used the crutches until the book was removed which would make sense on the large unwieldy boot with a nonunion fracture it would make sense that an individual or reasonable mind could conclude that an individual would have some difficulty ambulating with a giant boot on their foot to do various activities shopping banking walking without the aid of regulation talks about permitting independent without the use of a handheld assistive devices like crutches or a walker but you think of buddhism even oh no she testified that she was using the crutches until the boot was removed so therefore if she were emulate while she had the boot on that would take her through june of two thousand and twelve we can watch a clique conclude that if she were acquired the boot and given her prior written testimony to the administration a two ten in the in transcript that she could not walk and be late on the boot so your honor she was clearly or she by or testimony was using the crutches both crutches to assist with ambulation through june of two thousand and twelve when the boot was removed or cases require the ael jade to develop the evidence here she mention these other visits he asked her about those visits understanding that the records but why isn't it enough that he developed the record based on her testimony about those visits and what if the what's your best authority for saying you needed to go and actually change the record as opposed to just develop a chain versus act where the function of the a l j is not to merely sit in listen is not t effort to secure the evidence of an under represented individuals unsophisticated in the regulations who is unable to make an argument at step three is to the listings or we're not even sure who understand step five for that matter but the best case for that because it is a little hard you've got a bunch of coke i mean the with the framework seems to be you know the c f r is fifteen twelve she has to produce the records that's her responsibility that's he must reasonably help which to to in repeatedly when in fact she advised them of that is that's just an issue of what you think are incorrect factual findings more than a duty to go and develop additional evidence but it had he developed the evidence it might have led to a different decision ending it out to the hospital to request that were not answered as and at what point would it have been enough you know i mean obviously there's so many these cases there's to be some point in which the judges have subpoena power they could have subpoenaed the for the records he could have sent a request after the hearing signed by him he could have ordered his staff to do a follow up phone call my office received the records within a matter of twenty or thirty days after requesting them but all of it gets corrected right the appeals council has that's where the appeals council failed and that's the truth failure of this case ultimately not so if we go in getting beyond the judge's decision is the appeals council has flagrantly violated their own findings again we go back to the fact that the judge discredited her on the grounds that she had no treatment with you but you would agree the record you gave his counsel in no way reflect when she actually was walking free exactly and that's why it's an issue for the trier of fact that's why all we're asking is to give her a chance in additionally beyond that for the appeals council to follow its own rules for the government to do what it says it's it's supposed to do and it's what it's imposed on to do by this court they have failed in that respect and they do so when i practice this type of law and i have done so for quite some time the appeals council has repeatedly done this they issue boilerplate decisions where you make specific arguments you submit new evidence and you get a decision that says virtually nothing except we considered it and we found no basis under there are rules to change the decision the same exact letter that was issued in the one nine hundred eighty case about the same denial saying nothing here we submitted substantial evidence that could have led to a different result arguably it could have resulted in a different decision what circuit did rosa come out second ok that case though is a case where the ale j is going to disagree with the treating physicians conclusions you would see then that affirmative duty to call for records would be more sensible here you agree there was no there was no sort of just disagreeing with the treating physician now because he britt well really there was no wasn't sent until months later after the hearing it been scheduled i might add so were they derelict in their duties beis ascending to request not not per se but did they scrupulously conscientiously probe into an expand quire of all relevant facts certainly not and the fact that is decision was based on a complete misstatement of fact which was later proved to be true and then a subsequent decision which includes no evaluation of that evidence clearly establishes legal  which cannot go unnoticed thank you fully and fairly develop the record the second issue is whether any failure to the to both the record was prejudicial to the claimant with respect to the first issue based his decision on a properly developed record they also has a duty to develop the record for weighing fairly at the same time the claimant has the responsibility to provide the commissioner with medical evidence of her disability if the claimant does not provide suffici evidence l j must make his decision based on the evidence that's available to them so those are an easy answer to who was ultimately responsible to get the medical records yes or i believe there is because the claimant was not of her that is correct but it would you agree with their characterization that ultimately he was wrong he miss he didn't believe that she'd had the second surgery no sir i don't and the reason this realize in the text  he correctly pointed out that there was a lock of follow up treatment but but if he had surgery in december that's pretty significant follow up treatment yes or he said in the in the text of this decision he said that he was giving her the benefit of doubt that the december two thousand and eleven surgery took place so he does say that yes ok the the the treatment that she didn't get was was  question becomes may two thousand and twelve right yes or that's correct go ahead so you're saying that the l j understood that she did get the second surgery in december so therefore he would have known that by april which is getting really close to the may date she's just coming out of a second surgery and he understood all that even though he didn't have the records it's he did not have the records or they'll be understood that she now she wouldn't have been back in may not not explicitly no sir ok those are the big clear the commissioner's contention is that miss sun became able to emulate effectively as of april eleventh two thousand and twelve this is the day on which dr gorman released her to bear weight on the control ankle movement of walking really does in my mind reduce down to an eps case which is the appeals council gets the critical fact that you say determines that she could walk within a year but then they don't discuss it and don't mention it it's pretty perfunctory yes sir  ok so your argument now your entire argument now has come down to an argument you didn't make in the brief but it's footnote one in higginbotham so it's the statement it appears that the requirement of detailed discussion of additional evidence was suspended by a below disprove a credibility assessment made by the l g a the appeals council can just not discuss it and thereby it's sort of immune from the color of you is the position is your position that they just don't need to discuss evidence that may be inconsistent with a nail jay and if they don't discuss it there's no ability to reverse the commissioner's decision although serve this court certainly the court certainly would have the ability  fracture healed no mention of crutches though either way she was off the crutches are still on and no explicit mention of crutches no sir no explicit mention either way she was hand held the sister devices less than twelve months after the onset of her injury so if there if you have no further questions in conclusion the commissioners position is a substantial evidence warrants reversal even if there are no further questions thank you you first all hitting bottom does not stand for dissolution of the a c s requirement they were merely citing in a footnote that the appeal noting recognizing the fact that the appeals council had temporarily  but you know about the memory and how do you know it was a temporary suspension if that's what it cites in the footnotes it says that in the words it says a temporary yes this was twenty years ago is there value would you chance to look at it you didn't realize this is the front of their argument now would there be value for you to brief this issue i thought it was somewhat disingenuous for them to cite a footnote from higginbotham that merely recognized it when the holding in him by them is that follows my case the holding is that the record before the appeals council constitutes part of the final record before this court point the final record and the final decision of the commissioner thus higginbotham resolved a split amongst the circuits that's the importance of higginbotham it's procedural in that sense it involved the split amongst the circuits to determine whether the appeals council decision was a part and add junk so to speak of the j's decision and therefore was a part of the final decision of the commissioner thus by extension by that holding it must include some findings in fact the court heard him but them reversed for consideration of new material medical evidence they remanded it back for consideration of that evidence to say that it farther than the first instance let's say we find an eps error precisely along the line that you're arguing yes what if what you're answer to his suggestion that the record that they would have found value if in other words if our point to sink the pills councils you've got to discuss the stuff yes what is it in there that would be in any way valuable in terms of the medical evidence terms of ascertaining when she could walk again or not well her testimony as well as what's documented her testimony isn't the new evidence that the records themselves because it's corroborative of her testimony she was to begin weight bearing in the beginning in april but she still had a nonunion of the fracture the fracture we know for a fact did not heal until june we know for a fact the boot was not removed until june a reasonable mind could conclude that someone who has a large unwieldy boot with a nonunion fracture and testified to significant difficulty ambulating with pain would be an able to emulate effectively for that period of time moreover as she required the existence of a nonunion fracture in april that was a fact they did not have the only place that exists is in the records that were discussed is that your is that correct absolutely right absolutely and the boot was not removed until june she missed initially responded that she was using the crutches until her last appointment again probably in may probably it was actually in june we know for a fact it was june which would meet the durational requirement moreover the government is arguing facts here when the appeals council and the judge failed to fact the fact that we can sit here is attorneys and argue and she did return to when she didn't return indicates that it's an issue of fact for the trial court to decide you know my dad with respect to the claimants responsibility here is someone who completely unsophisticated did the judge ever explain to her that he had requested records and not receive them no did he ever explain to her her requirement that she make an effort as a matter of fact as a point in testimony she said in his her words if i would have known that you all didn't have that i would have went down there and requested it myself had they just informed her that they could not get a response she might have went down there in gotten the records herself but she was never given the opportunity and the judge made no effort after the hearing so again my play opponents characterization of thinking about them is completely and utterly incorrect and moreover their argument is that it's no detailed discussion there was none if their position is that the appeals council is not required to have a detailed discussion by some non binding non legal executive order issued twenty years ago supposedly temporarily then my argument response is they're making my argument there was no discussion it requires some discussion at least explain why you found the judge's decision  correct at least give the claimant in this court some opportunity to review that we have done not that we've got your argument thank you i don't counsel file by close of business on friday simultaneous letter breeze as to that continue whether or not the government's position is that abscess been superceded by that footnote and we will call the last case the day fourteen three zero four three three alan vs keller