three ways in which the administrative law judge erred first in failing to develop the record second improperly rejecting the diagnosis of the treating physician and third in improperly evaluating  impairment of migraine headaches with regard to the first issue as is the court is probably aware the the record is about the shortest administrative record that is come to this court in the past decade or so and it shows various errors various areas in which the a l j should have but failed to develop the evidence first the a l me didn't go back and and then they say we did and then only in your repeat reply brief you say but the way they asked these feelings was no doubt you know you  after dr garth oliver a doctor all over based his diagnosis on three positive a any tests and that is the gold standard for diagnosing lupus in from the red facial rash which is so characteristic that it gets lupus its name she suffers from photosensitivity sensitivity to light and she suffers from joint pain those four factors  killen and the only contradictory diagnosis came from two doctors who had neither examined nor treated her and were not even given the appropriate medical did your honor it they say that in their brief the administrative law judge did not say that because the administrative law judge never asked dr all over for his opinion on anything  letters that the two letters were well we haven't ever seen those letters the governor and and there is no evidence that those letters exist the the government is that when the case was pending before the state agency at the time that miss guillen applied for benefits they asked for a medical source statement whatever that means and i don't think work and it could be expected to know that a a form that says medical source statement is asking him to please clarify number one your diagnosis doctor and number two how does your patient's condition affect her ability to function on a day to day basis which is critical to any definition of disability women don't don't give away too much here and they asked for a medical source that we don't concede that they did know i'm wondering i thought you said they asked for one no i said the government says that they asked for one of the points to use acronyms and initials on on if in the that the government also says that they received something which we know whatever they received was only the wrong medical data the treatment wreckers and the and the laboratory manuscripts  yet when it came down to evaluating miss miss guillen's disability and her ability to work the l j completely ignored the fact that he had pretty sorry she had previously decided that  from severe migraine headaches she did not explain how she reached the result that ms gillan could function despite the migraine headaches she didn't explain for example whether she discredited mrs gillan statements and the statements of dr oliver that mrs gillen suffers extremely debilitating migraine headaches two or three days a month so debilitating that she is bedridden and she requires assistance from her mother to perform the activities of daily living so did the a l j decide oh miss killen can still work even though she will be absent in his employ a ball even though she will be absent two or three days every month on the random basis or did the l j determine that oh days that she has headaches still capable of going to work and performing a normal job he simply didn't address that issue at all did not explain how the a l j got to the result that the reached which is that could return to her former work or did j did decide that even though the medical evidence was guillen's headaches have been increasing infrequently that  there was no difference between misc illinois condition on the date of the hearing and her condition back in two thousand and five when she had been laid off the l and that that gap here effectively sorry like to start first with your concern regarding what council calls cryptic m s s requested language dr oliver would not have received something that said m s s requested that's the agency's internal document to the lives that were sent it is our process that we we only include in the record a copy of the actual letter sent out if in fact the doctor sends nothing back since the doctor returned information we don't as a matter of course keep those letters and i mean it's a standard form letter that we sent out i mean all of the cases which essentially asks for you know a medical asks for a statement regarding the patient's abilities to do work related activities including sitting standing that sort of thing that's a no you don't know i have a copy of the standard form letter and it's not resurrect is a doctor not not one direct it's a doctor all over the note confirms that in fact we sent him know because your owners were under the regulations under twenty c f r for zero four fifteen twelve and fifteen thirteen we are required as an agency to make a request for the medical source meant and one follow up and the record shows that the same jury has a duty to make a complete but the l g is not required to reach out to a doctor who has repeatedly who has after the two attempts not comply with their us we've got to make them complete a medical source statement it's not something like you could subpoena someone for a record potentially but a bit of a statement is not something that preexists this is something that we would be asking him to create and we've already asked him for it we asked him twice as the regulations required and our regulations state that where we have you know we're in a l j has reason to know that you know we've reached out and we've asked and they're they're not how do i do what in this record tells us you asked for a medical source on pages to eighty five and that's where the faxes know that that's where the r r disability work sheet which is the internal agency record of our communications indicates that m s s was requested which as i indicated means that the language requesting a medical source statement would have been included in the letter seeking records the fact that he sent talking about a two eighty five page twenty five that's not a that is not a fax that is an internal agency record it's called that of the top facts what does that mean j said was that there is no formal diagnosis or treatment for lupus and and what the l g are saying is essentially when the doctor diagnosed lupus on the same day at the same time it also diagnosed i other fatigue in malays and also diagnosed multi joint pain which are differential right on many other feelings he diagnosed he diagnosed lupus n b a l j says he didn't diagnose lupus because he also dog knows dove or feelings and that seems to me an extraordinary statement the treating physician says a plus b c and d and b a l j says oh i'm not going to pay attention to a because he doesn't so that you are rely on there not being a set of requirements which aren't was set of requirements that your regulations say should be there isn't that a problem i'm sorry i don't understand your question there are you disabled under the act which is not just a diagnosis of lupus but a diagnosis plus a certain level of you know functional disability so those are two different questions altogether whether or not it's diagnosable or not but as to whether or not the  j actually said there is no diagnosis he did not say there's no diagnosis he said there's no formal diagnosis and the reason he's saying that is because at the same time he stepped i can see two other things that would be essentially the other things you were diagnosed with is a for a form of the like a diagnosis that is essentially we're sure not a tentative diagnosis not a he says lupus and then he says over and who is not a diagnosis not i don't know what a formal diagnosis is when i get a doctor saying this is so and some other things as well it's like if a doctor said you have you know you have cancer or you have an audience into sorter and he doesn't  he say or he did not say or but the to give us an example of a doctor saying or when that's not that because if you were to diagnose lupus lupus would have covered all of the symptoms in which case there would have been no purpose should also diagnose diagnosing the fatigue in the baltic joint pain of iraq why can't a person have more than one disease because multi joint pain and other fatigue malays are our diagnosis that are typically used  you know while diagnosis is or are being rolled out this is not typically typically what somebody has lupus and has some other symptoms which may be as a result of government's argue well ultimately since this is obviously not a productive area of argument i would say that it doesn't ultimately matter under second circuit case law what you characterize the condition as because ultimately the entire constellation of evidence and here substantial evidence regardless of what her disorder regardless of how you characterize it there was evidence of the record indicating that it did not rise to a level of disability and so regardless of what it's called  particular constellation of symptoms when you look at her her you know examination findings when you look at her ability to you know her activities of daily living such as your ability to take care of her children all of the other things in the record indicate that regardless of what we call it we can call it lupus we can call it you know disease x it doesn't really matter ultimately because substantial evidence including the opinions of the state agency doctors supporting never saw her who never saw her but there isn't any medical opinion from someone who had seen her so that is those were the two best opinions of record given that we had reached out and did not receive and can i come back to the the document you have agreed or you told  guess the document that you say asked for the medical statement is not in our records right the letter itself is not in the record or is there a form letter the agency uses for that created by the connecticut office of your rehabilitation services where half where does one find one would only find it if they were to receive one if they were to seek one were to receive one or we would not see it but we would obviously provide a copy to the court at its request but you're saying the doctor did receive one but we know the doctor received it because he sent in information in response to it not all of the information requested but he received something he obviously received a letter from us oh do we know we don't know we don't know he certainly got a document from you we got that is true do we know whether he got anything that requests to a medical statement our record indicates the m s s requested language was included in the letter that is what that information on page two eighty five the case of element worksheet that is what that means to us in the agency that means that the language when you said means to you for into the m s s acronym yes is there anything that would tell the doctor what that meant yes their letter would include language that's that asks them when you say it would recruit included did it as according to our records yes it sorting to your record is it does your record mean you have a copy of it in your record no well then with the how does it your record show it because it's under agency protocols when we send out how do we how do we know looking at the record before us what do you think was with this doctor how do we know that we look at the record in the record there us something and the doctor said something how do we know you know we're here we don't go and what you tell us using your records and we don't go on what the plaintive says it does not does it use the words that m s s stands for it says please include a statement regarding your patients ability to perform the following work activities such as sitting standing walking and why doesn't use the word functional doesn't use assessment assuming regarding their abilities to work yes funks does it say ability to work or does his have some phrase that uses the word functional i'm not sure exactly what what is what you're talking about and if i don't try again does your regulation ask the doctor to make an assessment of the some concept that uses the word functional the regulation says that i mean meet your regulation i want you you to tell me what you're requiring thirteen says that social security administration must request a medical source to vent about what you can still do suspect your impairments a medical source statement write them assess didn't you tell him you r letter that you say you generally san tell him you wanted a medical source statement it said we want a statement regarding his or her ability to do work related activities such as sitting standing at sattar that person is the medical source and one of the doctors said in response you said he responded to respond well in addition to asking for the medical system in the same letter we asked for records generally and he decided to provide the records generally but not the medical source j just said that it was not a formal diagnosis and treat ok thank bolton mutely i mean i come back to the fact that this regardless of what it's called it was appropriately evaluated under the under a very similar listing to the listing we would use for lupus in fact an easier one to meet and that during the r c we considered the constellation of symptoms and you know relied on medical opinion evidence to as well as the evidence of record to reach what is an  that is consistent with her work thank you thank you your answer just a minute ago was the hail j said creating position did not make a formal diagnosis of lupus are you quoting the j there yes the form of the formal diagnosis language is from the l j and that comes from again as i said i was indicating the fact that there are differential diagnosis at the time the fact there was a referral at a rheumatologist who would be the one who would actually really you know make an ultimate diagnosis of lupus and and just the situation at the time which is basically that the diagnosis of lupus comes in between visits when there's no new information  comes in asking whether it was correct yeah i know it's i'm trying to understand first what the doctor said and then what the ail jay said you said yes you're saying he said you did not make a formal diagnosis formal is there anything in social security  and book or regulations that distinguishes between a diagnosis and a formal diagnosis now then why would an ale jay use the word formal if there is no such  isn't in the regulation what does that mean it's really more of an understanding from a medical perspective that that this was something that was sort of more open ended and in fact you know in addition so you're saying that that suited me but i don't know formally made it more and did he make a diagnosis of lupus or no formal i honestly i think in the context of the case and it was a fair use of them and ultimately it does not matter  because the characterization of it is with us no matter no you're dead i for understand the government has to be here and make the best of what they're given i get that but you don't have to tell us that everything an administrative official did which on its face is absurd you don't have to say it's not absurd you know you can you could stand there and say he really used them in artful way of describing it and not defend him to the hilt but if you want to say it was  brilliant of him to say there's no formal diagnosis you're entitled to make that argument but then you have to tell us why  i honestly i honestly think and me reading this record having having viewed a lot of cases and read a lot of medical evidence it seemed to me to be a fair use of the term in the context of how the time and it was the equivalent of not of saying that this doctor just did not make a diagnosis that essentially wasn't it was it was tentative and it was ended in the context of the differential diagnosis the fact that he sent her out for blood work by the way  lupus bloodwork that he sent her out for at that time ends up being negative he sending her out from a what made it tentative the fact the combination of the fact that it was diagnosed at the same time as the differential diagnos s the fact that it was a rheumatology referral was pending the fact that he was sending her out for blood work for lupus which comes back negative the fact that the timing of the diagnosis in the context of all that makes the word use of the word security it came from the state of connecticut which was trying to do work up the file so there isn't a form letter we don't know what the letter said what we do know is according social security zone file they addressed one to dr oliver and received records and then they addressed another one to save in medical practice not directly to dr over so to the extent that the government concedes that you have to make a request and a follow up request the government didn't do that in this particular case secondly as this court has said repeatedly for example in the case of cruz against sullivan if you don't have a report from the treating doctor the a l j can say to the claimant good to get a letter from your doctor we really need it this woman as as the has said was pro se she had no idea that a report from her doctor would be so significant she knew that his medical records were already in the file but she didn't know that that this court value is the opinion of the treating physician that the social security administration needs to know the treating physicians opinion and the regulations by the way judge newman say  to request on a function by function basis as you asked counsel how does your patient's illness affect her ability to function in the war in the daily life on a function by function basis and that was missing from the file here and finally why would the ail jay say there was no formal diagnosis of lupus because they all j said meant therefore ignoring a diagnosis which doctor all of a rote and exists in the record diagnosis of lupus with the international classification of diseases classification number that the international medical committee gives to lupus and it doesn't say differential diagnosis dr oliver didn't write well maybe it's lupus maybe it's just joint pain he said this is lupus and as as you said at the beginning