my co counsel is available with the court as questions on the other issues i want to start out with three crucial points which are not in dispute but some courts including the district court here and the exhaustion rule in the disability context we urge this court to exercise judicial restraint and not make policy by creating a judicially impose l j level issue exhaustion rule which neither congress nor s s a has seen fit to do since the twenty years have passed since the supreme court effectively invited them to create point for the th circuit and the rd circuit in ramsey and sirico in ruling for claimants on this issue there are several specific reasons why this court should fin severely mentally ill disability claimants did not forfeit their appointments cause challenges by not raising them before the st point is the most important and i'm going to spend the most time on it and it's this s s a hearings are informal and not adversarial this isn't my opinion this is confirmed by agency yet but that doesn't but that doesn't mean that you can't raise issues to an l j right we can raise issues the question is whether we're  on one of those one of those courts mr turmel i forget which one it was suggested that there is potentially a benefit to requiring exhaustion even in a not denver sariel scenario and that is that if the commissioner learns that there are a lot of these issues being raise he or she may decide to take some remedial action what is your response to that suggestion well a couple things about that st of all court shouldn't be making policy s s a s had two decades to put this into effect in the regulations they chose not to do so i think that's key i think the other part that's key is look at what ramsey and talk about regarding this even after the government was aware of its unconstitutional actions for many months there after the agency did not take corrective action and let's look at the circuit law even in this circuit the recently on pub which decision had pharmacy doctors said yes we're going to improve we're going to impose issue exhaustion requirement in the da context but in doing so this court emphasized that that's because the d n a is an adversarial context if you look at this court's prior published decision in the home versus department adversarial by contrast in disability hearings they are not adversarial and they are informal so the reason for imposing an existing issue exhaustion rule in the d obtain release s s a cannot be allowed to argue for an a l j level issue exhaustion rule which is contrary to its own stated policy on the point and squaws challenges in nineteen supports the claimants position here in lucy if the supreme court held that in appointments clause challenge was preserved even though it had never been raised before b a l j in the disability contact were informal not adversarial and have no specific forfeits rules so how could it be that it's preserved for the litigant luciana even though he didn't raise it to be a o j but my clients would have lost it by not raising  lose later in the district court raise the appointment clause issue and you get a nd bite at the apple first of all your honor no one knew about this issue in the disability context it was an absolute shock when this came out almost and the one case they point to man back out of the southern district of new york that wasn't even a disability claim and that was an attorney who was facing representative sanctioned by the agency no one was arguing this it simply didn't exist almost at all so it's not like people were sandbagging on this and by the way if the agency is concerned about sandbagging go ahead and pass  that requires a l j level issue exhaustion but they've never done so and they've had twenty years since sense to do so and this your honor your question gets into the point of futility as well which is something that's been any claimant who raised valid a point which cause challenges and it's not even back then to this day there is still no s s a procedure allowing an a l j to grant any appointments not engage in policy making and create a judicially imposed a l j level issue exhaust rule which neither s s a nor congress have seen fit to do in the twenty years since  in consistencies in basically her testimony or source something to the effect work you know she says this but then she says that or something the thing consistent basically with how she's living her life as opposed to how she stayed claiming the life something basically to point out as to why he's not credible all right thank you very much i really appreciate it you're welcome ron ok mr salzman whenever you're ready please the court joshua salzman on behalf of the commissioner i'll be addressing the appointments cause issue i'm joined today by ms hannan from the social security administration who can answer any questions the panel may have about the full force to appointments clause claims and did applies in social security administration proceedings for that reason the judgment of the district court should be affirmed you know if you look at i'm sorry did i hear a question coming no i don't think on hold on one second let me ask you a question please tell me how this thing would have played out had miss lopez asserted her appointments clause claim what would be a l j have done given chronology aside i think the emergency messages actually support us in a in a critical way which is that if you look at the what the what the aged what those emergency messages direct the agency staff to do is to track  if it depends how you how you define on the table by january th team the supreme court had granted cert include shia so there were certainly awareness out in the world that there were arguments court decision with potential relevance was interested in tracking that but if what the agency did not have notice of in january th seen with it folks were going to come and start pressing this argument in math interest at this time nobody was making this argument before the agency as i think it was your honor brought up earlier the th circuit correctly recognized in the davis decision that if the agency had started getting hundreds and thousands of claims in its proceeding maybe the agency would have recognized in light of that risk that it made sense to be more proactive and to that that the agency couldn't afford to let this play out and get further guidance from the supreme court before significant because it underscores that the futility argument here just doesn't hold up this is a problem that become that the agency always has the power to solve because a all changes are inferior officers if anything and not princip officers they can be appointed by the relevant head of department which here is the commissioner of social security this was an issue the agency had the power to cure and had the power to cure with the stroke of a pen at any time if as l a tucker indicates the agent is  appropriate the agency had been given notice of its accumulating risk in the agency could have acted to address that but instead people sat on their hands that you're not arguing that  knowledge or any appointments clause claims preserved and made in any social security proceeding  is grant relief it would give new hearings which i think underscores that the agency is being reasonable and in fact has been doing its best to respond to this if you when folks do what they're supposed to do which is give the agency notice which is what was standing principles no no we'll talk about ms lopez's case ms let me change the facts for you ms lopez asserts on appointments clause claim right in front of the a l j would be a l j i'm not talking about the appeals council or the commissioner or the agency would be a l j have had the authority to declare his or her appointment unconstitutional under the appointments clause i don't think the would the appeals council then have had our constitutional authority to declare the appointment of the a l j unconstitutional again i think what they had the power to do was to flag it and bring it to the attention of the commissioner and it's the commissioner who had the power to actually fix this issue and i think that's discretionary power right well to to the extent of it these folks are inferior  officers than i do think the commissioner would have alternately had and and wanted the agency to to to be able to continue to function i think an appointment was eventually going to become necessary but yes i'd say it's a discretionary power but the key thing here is that the agency has the power to address this issue and i think the right frame of reference and if you look at the l a tucker opinion from the supreme court it talks about the agencies in title meant to notice o response to mr charles argument that the social security administration has not seen fit into decade to create an administrative exhaustion requirement either by regulation or by going to congress to create a statute i'm glad you bring that up because i actually think that the posting history helps us so so two things about sam's st of all i want to emphasize that sam's is just about the appeals council it does not speak to what's required it does not say that you don't need to exhaust before the agency at all and if you look at page one hundred and seven of the majority opinion the court is quite clear that it's not addressing the broader question of if you would exhaust an outside of the appeals council but the other thing i want to direct the court's attention to is what the scaife law developed as in the in the courts of appeals in the wake of fans because in the wake of sam's courts had to decide does requirement at all in before social security administration the th circuit held the same thing in a case called anderson the th circuit held that in try be so if you if you talk about what the what the agency should have been doing the agency saw things playing out as agency thought was appropriate which is that courts of appeals were correctly continuing to apply if you exhaustion requirements in those administrative proceedings consistent with background principles of administrative law and to the extent that what the agency has not by rule created an administrative exhaustion requirement is that correct agency has not required  not developed a regulation that specifically addresses this no they have not but again i think some of this is a question of what you're starting to fault premise is and you start from the premise of you should assume exhaust save as a card in their back pocket some arguments that they can bring out on traditional review to get a do over if they're unsuccessful before the agency that's the danger of sandbagging that's what and if you don't have  exhaustion requirement it really threatens the ability of the agency to function and it's important to bear in mind that s s a resolves millions of claims that year conduct hundreds of thousands of alle day proceedings every in order to profile fill its mandate of providing hearings and all of these cases and ensuring that folks get the benefits that they're entitled to and if you treat everything as a trial run if you allow people to  minutes ok if you treat it as just a trial run and you will allow arguments to be made for the st time on traditional review and then you get to cut back to the front of a line folks who've been waiting years their st hearing have to wait a little longer because somebody chose not to make an argument the st time around and either strategically chill problem but it still you would only excuse that in some kind of rare case and this is certainly not a rare case there are literally thousands of these cases that have been brought in district courts across the country and but for the fact that the overwhelming majority of district courts correctly rejected be squinting at the outset god only knows how many there could have been keep in mind if point to argument were excepted roughly many hundreds of so so a couple things about that in pharmacy doctors this court correctly rejected the argument that you didn't need to have notice that one of these arguments wasn't available until the you had the ability to raise the of the argument the other thing i'd point out is somebody that there is the man back case that we that we cite in our brief i think that was referenced by mr turmel somebody raised an appointment because challenge to an s s a l j i think it was arguments before the supreme court gives you the best authority you could have there were certainly no controlling precedent going the other direction so i don't think you can excuse it on that basis i see that i'm coming to the outer edge of my time so and get a new hearing that's just not consistent with founded ministration or sound traditional application of background principles of forfeiture which according we are to affirm how many of you if you're talking about the heavens opening up cases left in this circuit but i don't think the right vantage point is to think about it today you're reviewing a decision that was issued by the district court in march of two thousand and nineteen and in march of two thousand and nineteen there was an absolutely would try to make concern that tens or hundreds of thousands that we have the benefit of hindsight in the benefit of the fact that the that the district courts have had mostly rejected this and stem the tide now it's only a few one hundred cases left in the system so it's safe to rule for the plaintiffs but you're you're deciding what the rule should have been back in two thousand and eighteen and twenty nine t and that and at that time there absolutely were tens or hundreds of thousands of cases potentially at issue now are you able to answer questions related subjective claims of symptoms and limitations of course the l c a here clearly addressed her claims he laid out her claims in the beginning of the situation and he noted that they were inconsistent with a lot of the evidence of record and then throughout the decision pointed out the inconsistency is including you know her own reports of improvement with medication as well as her doctor's note indicating that her subjective report to her doctor were a little bit exaggerated with the doctor's findings and i don't think that the algae needed to do an expressed point by point paragraph responding specifically to her subjective complaints i think the decision read as a whole is adequate to s that out and explained why those her reports and dr marmont opinion were inconsistent with the treatment history in this other evidence of record and again you know the decision should be read as a whole and we're looking for whether or not it supported by substantial evidence and the turmel you've got your your honor i want to start out with this point which i think is crucial s s a continues to flee from the fact that disability hearings are in formal as a matter of wall agency will not even address the fact that they sent these severely mentally ill disability claimants notices telling them that their hearing is informal and now the government's in federal court saying those hearings were actually so formal that you lost constitutional rights you did not specifically assert that's not fair it's disturbing s s a s arguments  generis informal and non adversarial nature of disability hearing next crucial point they were accumulating risk theory that's one of their big things based on l h tucker which is not a disability case it's not even an appointment because case it's been rejected twice in the disability context matthews versus eldridge three hundred and twenty nine through thirty a supreme court decision and the where you're talking about accumulated litigation risk forget about appointments clause how about every single possible issue in the world the agency has been well aware of that they do not have the forfeits a rule at the a l j level not only did they do nothing in the twenty years since since they've done nothing in the two years since the appointment clause with the geisha has been going on so if this were so existential if the sky is falling then why agency do anything because as the rd circuit pointed out on mr salzman exact argument he offered today the argument is pure highs per bully that's a quote from sirico final point your and not adversarial context of social security disability adjudication the availability of judicial review of constitutional questions is presumed the agency has come forward with nothing to overcome that presumption and i have nothing further on all right thank you if there's anything else you'd like to say mr turmel we have handle the argument in that case i don't know if you have more to say and whether or not mr salzman has more to respond to well your honor i i would say this i mean attorney for love to hear themselves speak but it's the exact same attorneys it's the exact same issue we're going to rest on our briefs on the non was to the issues so i don't see a point in me repeating the exact same arguments again i had my opportunity he had his opportunity i had my rebuttal i don't think there's anything more to fat ok i want to give you the opportunity to have five more minutes of argument if you want and for mr salzman to have the corresponding time in but if you don't want to say anything else that's perfectly fine what i'd rather do your honor if if the government is going to speak again as i'd rather have time for we're bottle but again i think we know the government the government only gets to speak if you speak because that we had today we are taking on the briefs so we want to thank counsel for their presentations they were certainly very helpful to us and i'm sure will be of great assistance to us as we try to figure out these