good morning your honor may it please the court i'm john johnson and i am here on behalf of mr lance road plaintiff appellant mr rhodes has undergone three surgeries to repair rotator cuff tears of his right shoulder after being injured in a logging accident that gave substantial weight to the opinion of dr sr is a state agency examining physician who determine that mr road had status post right shoulder surgery with reduced says that the only records he had before him were from mercy medical center in redding which contained only records with regards to rotator cuff tear surgery and are through plastic of his left shoulder that substantial evidence does not support the judge's findings that he made good recovery movement and stability of his right shoulder because this court has held in the garrison case that i must select data points that co evidence of a broader development of improvement mr rhodes also contends that l j erred when he said that dr hogan the surgeon did not offer any further surgical two explained why you couldn't get the additional medical evidence or m r i findings by the time of the appeal council's decision can you explain why you didn't have that  mr rhodes was going to a tribal health clinic up in rural northern california outside of reading and the position that there had to refer him back to dr vrba very then had to get a in the record it's just the time period involved here i said at the time period from the date of the remained orderly you're talking about that he needed prior authorization from the you know where is that in the record that is not in the record your honor so this is just the way  clearly knew what to do and how to do it but in this case he has a determination he doesn't act and the time the appeals council has acted and now he tells us that we should have that information before us he can have a new proceeding claim a new disability but basically i'm trying to understand why we should say you know this is inexcusable delay when he clearly knows what to do and how to do it you get an m r i well the claimant i knew that he had certainly serious problems with his shoulder all i can say is he just went back to the if they'd sent it back to dr for hold then maybe he could have gotten authorization for the claimant just knows that he had three surgeries major injuries and he just left it up to the clinic to try to take care of him again i don't question your client's pain what i'm trying to understand is understand your request correctly you want us to basically open up the hearing based upon an m r i that was done months management and he's had a surgeon somewhere else here you know it's just the dr davis at the clinic heir apparent didn't feel that anything could be done and had to send him out he referred him back to  to perform all work in the united states of america that new on say certainly would be the date of the new m r i findings that found that he can do it have three tears in his attendance in his shoulder here as well as the labor in labor has a little piece of the rural areas is one year from the request of the hearing to get a hearing scheduled to i hear all that have a hearing but you're really asking us to then ignore what the law says that you have to prove that it's material and he had good cause that you can't it is immaterial to his case he's had three surgeries that shoulder here and every time that done an m r i they found that he continues to have a failed rotator cuffs surgery repair  hearing that it is material to the extent that as i try to point out here that his forte there is for tendons attached to the shoulder and three of those tendons have always been tears have te pain in his arm because of these tendons that are torn here that has never gone away he's always had a pain management here because as it's excruciating pain here nothing has really changed because he searches have ever been effective it's  your honour's i'm jennifer kenny on behalf of the commissioner for social security andrew saw the fundamental question before the courts whether this interpretation of the evidence was reasonable and supported by substantial evidence  there's no dispute here that the claimant had residual symptoms after his surgeries but not all pain and limitation equates to disability and here the l j reasonably found that the evidence showed he had sufficient recovery and was able to me an age is residual symptoms with treatment medication and occasional injections  undisputed medical opinion evidence supports that there are numerous doctors he found he could perform at least light work that's consistent with the l g s finding of at step five that he could perform unskilled light work  consideration of the supplemental medical evidence issue at the obviously that's where it has is concerned yes so the evidence that was provided to the district court was new and related to a later period of time than what was at issue before the l j and so as has been recognized the appropriate process here would be for the claimant to submit a new application and provide evidence of the changes that have occurred since the last decision last a decision well he argues it's material to the condition as it existed at the time of the l j s decision the certainly the x ray indicates some of the same shoulder issues that he has been dealing with but it also specifically says that this that one of the chairs is new and that it's new from the comparison x ray and its claims counsel has conceded that is a new injury and to the extent that it has deteriorated since the decision the appropriate next step would be to file a new claim and have that new injury adjudicated simming it was material just for purposes of argument how do you respond to the good cause argument a good cause for submitting it after the fact well with respect to the opinion from dr davis that was a provider that he was in contact that clement was in contact with during the period at issue and there's nothing in the record to suggest why he couldn't have received some sort of opinion from that doctor within the timeframe that was that issue or for the l g a so there doesn't appear to be any any valid reason for waiting until october to get that opinion but basically you heard my questioning counsel about the m r i aspect of this but it seems like he had had lots of m r eyes had lots of experience and  the doctors involved knew what he was going in for because they were consulted if this had been something they felt they needed to talk about they could have done it right with or without the m r i yes of course and they did showed according to herring himself that his condition deteriorated is that correct in may dr herring said that he could do work yes but by october he said he could do no work to the medical evidence and that they it was well controlled by medication because as i noted mrs linde a licensed clinical social worker was treating him for depression and we have interfered with his ability to make judgments and make sound reasoning so a part of the problem i'm sure mr rhodes was concerned about is that after discussing having discussions with  there is some discussion about total right shoulder replacement and dr hold said he didn't want to do that because he's a young young man still here so he suggested any plessy but so there's been discussion about replacing the whole shoulder he's in a lot of severe pain under pain management and apparently it affected his judgment in reasoning and maybe he was reluctant to go ahead with major big time search as a young man and he's a working guy logger and he may i didn't i didn't talk to him so i don't really know a lot but he have made some bad decisions reluctant to go ahead with major surgery we contend this is another good cause reason the we would all be hesitant about having our shoulders replaced and i think that should be ten the consideration that did not include any limitation with regards to the combination of his pain symptoms plus depression  in the residual funds with passive funding nor would you pose any such limitations in the hypothetical questions to the vocational expert and we should think that this should be considered and whether he i don't think there's any evidence that he voluntarily delayed or that he was smuggling ring in any way shape or form here he had numerous surgeries there's been no significant improvement in his condition in that shoulder it looks like it's getting worse where it's going to and he was fa decisions about how much damage he wanted calls himself our presiding judge will decide in terms of timing but your time i just want to make sure i understand your part of your case you're arguing the decision of the l j you're saying  was inadequate because they did not you know compare and contrast who said what and discount testimony and the like and then you're talking secondly about this m r i which occurred afterwards we have really different issues here but your argument about the pain the under we empathize with that but the pain that he's under and what happened at the ale g hearing is not what controls this is there good cause to open it up based upon this new evidence you understand of course yes i do your and that's why i try to make connection that there's been permanent damage of this incident is all true it's a new injury and it wasn't