julie comes from an extremely deprived background she was the victim of a great deal of abuse sexual and emotional as well as physical abuse as a child and as an adult julie became a meth use meth she in two thousand and seven she got in trouble with the law she was required to go through treatment in order to address her methamphetamine addiction after that julie has been substantially queen for many many years  she hasn't been absolutely clean she has had relapses i've known her for many years and i would average once a year so she has a relapse but largely she's been sober she has not been well she's been i would strongly mentally ill and she is really a highly dysfunctional individual in two thousand and fourteen when the affordable care act was enacted julie became eligible for a medical insurance under the oregon health plan and that after that point she got some evaluation psychiatric evaluations done that really change or provide a basis let's say for the underlying conditions prior to that during the time that the hearing went forward she had very little black sister treatment she was seeking treatment at a catholic free crap like clinic  it was extremely difficult for me to get medical records from there at all they are so overwhelmed and underpaid that you know i was pulling teeth to get through to them the judge in this case found that julie's criminal background and her addiction were the primary reasons for her disability and to me that is an entirely misguided decision count for it perhaps i know you've been doing this for a lot of years material to the to her disability he used her background and her circumstances as a credibility issue and then based upon that disregarded everybody's because he's stated lots of other reasons as well for discounting her credibility when the primary reasons that he is for undermining her credibility if you want to talk about credibility with her was her background but she shops she goes to a day treatment center for homeless women with addiction issues she goes to treatment she has a friend and she watch movies with her friend and she has they said something about work  her lack of motivation to work is that something you're attributing to drug use or just to her lifestyle and and those homeless shelters well i think that's a big issue that work issue  when julie was arrested for possession of math and she had a parole or probation officer and work was a requirement of her parole and so she did try to work  first of all let's let's focus that this this work activity that is relevant occurred in two thousand and eleven if i'm not mistaken there is discussion in the file about her working for the m two thousand and seven according to my notes i'll take between two thousand and seven is when she finished her drug treatment and that would have been when the work requirement went into  worked she got a job for the mary i work activity at the marriott looks like it lasted for less than a month part time there's reference to it and let opinion as it is that i think does not matter or is it him very important i would say very important and the reason is that prior to those two evaluations taking place in two thousand and fourteen there was no to get the about you ations which which i thought were pretty strong of valuation so why i guess what i don't understand is why wouldn't you want to send six remain and to get that evidence back before the a we submitted the evidence to the administration during the administrative proceedings that was already submitted or you submitted it after you had lost that j level i counsel ok but then the appeals council says we looked at it which i guess is a term of art but because it covers a later time period it's not relevant therefore we're not making it part of the record isn't the easiest solution to that problem to ask for  want a sentence six remained at this point because it seems to me that ultimately gets you where you want to be which is the evidence is actually the record is essentially reopened a the fact that she didn't qualify till two thousand and fourteen is a good cause and i don't know what the law is on that but that sounds like a good argument to me you're right what we want is for this case to go back to the nail to be evaluated hindsight that that's what should have happened but i can't rewrite history here and i yeah ok you know i mean that to me i went through a great deal of effort to try to scramble and get evidence that would show that she had much more profound limitations than what we were able she has a new claim pending does she know ok so the claim that the claim that brings us here the period of disability was two thousand and three to two thousand and fourteen no not two thousand and three that's that's incorrect she filed her application and two thousand and eleven but i think she was claiming disability back to two thousand but that's it that's an odd little fact that appears in this well is a true factor and i'm trying to think it's an unsubstantiated allegation what i want you to find the period of disability on the claim that she filed from date of application s s i benefits are only as of the date of application which was i believe october of two thousand and eleven she did in most epa s s i applications there isn't a little sense in there that says i became disabled and because it's irrelevant what i mean they could say i've been disabled since birth but then it's irrelevant i thought i understood social security well i mean if you don't i thought that that l j looks to the date of onset of the disability in are you saying that that's limited it can't be any earlier than the date she filed in s s i cases are different from s s d cases ok and there are different underlying requirements of the programs and so and then s s i case i benefits are effective as of the date of application and the only time that you look at some other date is if i can't recall you morning may it please the court jeff staples here for the commissioner who asked that you affirm the district court's judgment because the o'jays decision is supported by substantial evidence i'd like to turn first to the new evidence that we were talking about  first of all judge hellmann was exactly right sentence six is the mechanism for getting evidence that's not in the administrative record before a court ok so when the appeals council declines to include that evidence in the record the claimant is not simply out of luck sensex provides a vehicle for bringing that evidence to the court and saying hey take a look at this this provides some basis for undermining the g s decision you should send it back for the l g to look at it in this case however the new evidence is not material it covers the same ground as the old evidence now there will more he know that because it's not actually included in the record because the pills council said no it's not there so it's not even in the record how are you able to say for us that it's not material because solar more submitted the evidence attached to of the record if that was improperly decided doesn't taylor tell us that we can consider whether the appeals council was improper in rejecting the new evidence no your honor that in rejecting this piece of evidence so tiller was it in my view a fairly unique constellation of facts the appeals council didn't comment on that report nevertheless it was in the record and so that's why the court could review it along with all the other evidence in kind of a bruise style analysis and so bruce says that when the evidence is in the administrative because at the appeals counsel put it in the record and then the appeals counsel's mistake was failing to comment on it but the court did was pretty specific about not exercising jurisdiction over the appeals counsel's reasoning or their discussion the court expressly disclaimed any jurisdiction over that nevertheless because the evidence was in the record the court was able to review it along with everything else and the court subsequent decision  bruise explains why that is the case this is factually distinct because the evidence is not in the record and under taylor and several other cases the court does not have jurisdiction to look back and review whether the  the appeals council gave good reasons or was correct or or whatever in deciding what to do with that evidence nevertheless as i said that doesn't leave the claimant completely out of luck on the subject of the new evidence the mechanism for getting that evidence before the court is not judicial review of the appeals council's decision it's sentence six of four or five g so that's that when when evidence is absent from the record but attached appellant's brief it comes in under sentence six and that carries with it the good cause and materiality requirements do we have the power to six remand you do your honor but you shouldn't in this case because the new evidence is not material it concerns a period after the l g s decision it's all post dates and no one looked back and said what do i think about solar morris functioning during the period under the g s consideration to the extent sheet there are some records about physical limitations and it's possible that better physical limitations worsened after the l g s decision because of the hearings she said her physical appropriate remedy on the mental limitations they're not material and they don't show worsening because they're really more of the same there's more testing done that confirms what all of the doctors who reviewed the record at the time of the o'jays decision already knew which was that soul or more had very limited intellectual functioning and dr duvall said that after his evaluation and both state agency doctors who reviewed the evidence also agreed that solar and more had very limited intellectual functioning in that that was a problem for her and caused some limitations however they didn't cause so many limitations that solar more was unable to work she could continue to work in in simple repetitive tasks with no more than occasional public contact solar moore's work history also supports this conclusion in her application she alleged that she became disabled in two thousand and three but then she also admitted that she continued to work until two thousand and ten and she there's evidence that she was working for the  thousand and seven on a full time basis there's other evidence that she was declining to accept work because it was a for more than a month that was the first time i'd heard the reference to the myriad doesn't occur very often and i don't it's not clear to me when exactly she stopped working at the marriott i didn't see any of the records limited to my i didn't either she said she was there there was one record that says she was starting work at the mary at another record and this is five sixteen and five eighteen to nineteen so i didn't see a lot of references to it but on the other hand there's also her admission in the application that she didn't stop working until two thousand and ten and the only reason that she stopped working was not because of her impairments but because she was laid off so this evidence allowed the l g to conclude that solar more statements about her limitations were not fully credible and to the extent that any of the dots go as you question about the credibility determination because assume with me that the substance abuse and drug seeking behavior were not correct ways to attack or credibility yes you're on is that still harmless error and why i absolutely a harmless error because this the working the evidence that she was able to work at a time that she said she couldn't work that's a very important factor for an l g to consider when when the the crux of the analysis is can you work and here you're telling me that you can't work and on the other hand you're working that's that's absolutely a proper credibility factor to consider there's also the fact that she was choosing not to accept work because it was unglamorous this is a transcript to eighty one there's dr duvall's opinion you  know solar more and a variety of lay witnesses said that she had extreme distractibility couldn't follow a conversation couldn't stay focused on any topic for more than a few minutes but on the other hand there was dr duvall who conducted  thorough examination and clinical interview with soul or more and although he didn't conduct all the tests that that later doctors did he still identified solar moore's limited intellectual functioning as a problem but nevertheless found that she could follow the conversation she had a somewhat limited fund of knowledge but you know she she didn't have these extreme distractibility problems that other people were describing so the l j was permitted to rely on these factors among others and in concluding that solar more could perform simple repetitive work  that being the case any other errors related to solar moore's drug abuse were harmless there is the records show really she had some criminal history although she tended recall off the top of my head what those periods might have been although the i do recall that the l j pointed out that her criminal history might be more of a barrier to her employment than her actual functional limitations and so although i don't remember dates off the top of my head it was something that they ok considered in saying you know you haven't worked much why is that is it because of the impairments that you claim are disabling or is it maybe because of these other factors and given her at least occasional work during the period that she claimed to be disabled that was another reasonable basis for the l g s decision rebuttal couple thing with respect to the issue of whether or not the evidence that was submitted to appeal counsel should have been made part of the record this discussion goes back far earlier than bruce i would request that you look at paris versus chaytor which is at found it seventy seven f there are forty one from nineteen ninety six in which the court went through an exhaustive review of all the the treatment of this issue by all the different circuit found that the regulations require that the appeal counsel evaluate the new evidence and it should be made part of the record but doesn't the appeals council have the same discretion that district judge  in ruling on a motion in limine the as to whether or not evidence is relevant to the issue that is before the court of the administrative agency i'm trying to figure out why it's different at the appeals council level versus what it would be if we were talking about a district court ruling if yes council has a duty to evaluate case german when the decision was relevant and correct based on the evidence of record at the relevancy i'm posing here is the relevancy  it why doesn't the appeals council have the same discretion that a district judge has in deciding what's relevant and what's not when it comes to property of it welcome regulations don't give them that that that that role i mean so you can submit anything under the sun in the appeals council hast to know they have children about it with regulation i'm sorry keep interrupting you know you do i'm less concerned about that then they i'm about the fact that you're not answering my question he appeals councils obligation duty is governed by the regulations the regulation says that they shall and evaluate the entire record including the new and material evidence and material that that's what i'm asking you what if the appeals council decides as it did here that the proffered evidence is not material because it's outside the time period covered by her period of disability claim i think the time period to be looking at the time period is more limiting than it should be what's relevant what matters is whether the evidence is relevant to the inquir saying that the appeals council has no discretion in ruling that proffered evidence is not relevant to deciding disability for that it appears as though the appeals council looks to the date and to whether or not the evidence was created pry on or before the date of the unfavorable a l j decision rather than looking at the underlying substance to determine if it is in fact relevant even in our court that we don't normally consider evidence that was obtained or proffered after the district court or the administrative agency ruled and the problem you've got here is one of timing this evidence didn't surface until after they l j at issue is written decision yes that's true it didn't ok we didn't have the opportunity to get it i just want to add a couple things that you