and again this is a very procedural situation where my client has dementia and in two thousand and eight he was working in a pasta factory he felt like he had migraines and that there was some chemical problem in the plant and he began and he took off time but he still couldn't keep working because of the pain so he applied for disability was denied he didn't know he could appeal and this case is very important to the court because if we don't keep with the commissioner's regulations this is just going to repeat if a person has dementia and they can't remember where they were the court as in sam says that that's the supreme court case saying that this is not adversarial this is a case where the court administrative judge has a duty to develop the case so what happened in this case what scuse me i'm sorry what we see me for interrupting it would be helpful for me if i could figure out what your position is on what triggers the duty to develop the case opposing counsel argues that there was a diagnosis within the covered period and so this duty didn't develop so could you back up and dress that threshold issue please ok so when there's a mental impairment when a there's a actually a duty overall in armstrong to develop the case and that she has has a deck of cards in order to do that they can get a consultation examination they can subpoena the show that there was an impairment demonstrably by medically acceptable clinical and laboratory diagnostic techniques during the period of coverage i think the l j found that there was an impairment is the had considered all of the evidence even if that they had considered all of the evidence was there any diagnosis or medical record that indicated that disability had onset date during the covered period well he has severe dementia that that that was a  for a consult consult of example but a month after he's since him out he makes the decision so that that console to examination was not considered by the all change so your argument really is hinged upon in this about the onset date that's what there has to be medical evidence to determine whether what the onset date is and the j was determining or i could shouldn't conjecture but a whether there would be an  award based on the onset date so he so what they're saying what he's saying is well there's no evidence as of a month before this application but i'm going to send you for an onset and evaluation he could have easily asked that consult examiner does this medical records are retrospective this was a standardized test for dementia he's got severe dementia it the examiner th psychologist who's the only person who's allowed to make an evaluation on mental illness could've said oh no i can develop in a year or you know it could happen just this month but there was no evidence no questioning and not even discussing that doctor's opinion so the the commissioner paid for the twenty million eighty two thousand dr gardner's report it needed to be considered and there you can buy  case where there's no overlapping period but they're both but his title to and his low income s s i it's for the same period it's just whether there were awards benefited and that's done later by the d there's no evidence because in the medical report they said there's only twenty pages of medical records here we can't make a decision a medical expert at the hearing said i don't have enough evidence to make a decision there's no evidence there has to use evidence so that is the problem there is evidence and there's also a two thousand and eight application that the commissioner had that no one else had and in this particular  hell the the commissioner is going to say that's rd party evidence that's not medical evidence but the commissioner has in their own regulations this comes up people have dementia have brain trauma they don't know what's happening so at home you can go to a doctor but the doctor only sees you maybe half an hour forty five minutes your daily living and what you're doing and how you're acting it's important evidence for social security and it's a non adversarial situation this is a social worker a license social worker who gives an extensive report the mom the mother talks about him actually being psychotic this is a chronic condition that's decreased where you cannot rely on mr jones is given ok there's nothing well there's a perspective here this is a small town court allowing there's only two places that serve the homeless he's homeless for eight years the social worker says he takes him every two weeks the problem here was the twenty pages of medical records were just what mr jones said i go to to the you know the trailer for for health care and they only got those records as of that date that he talked about rather than it's there's missing records just you know evidentiary he's plied two thousand and eight he has migraines he's getting migraine medication he's there's you know there's obviously a duty to develop that even just by asking with the dementia how long consider chronic severe dementia you only have to do fifty but if you set it dr gardner as a source of possible information as to how long standing right past year or two hundred and seventy nine right he wasn't asked that and he was just asked to evaluate he wasn't asked to evaluate the record he only evaluated by testing him in that where is th there would be more medical evidence it's just that there is medical evidence there is a clinic that he went to because for christopher jean christopher green the social worker has said that for the last eight years he's taking him every two weeks to a daho and it states on the top of the st set of i've better serve my time please the court jordan goddard appearing on behalf of the commission of social security good morning your honors i'd like to start off by addressing this claim of dimentia one of the st appears in the reply brief by jones and it's been repeated multiple times here in this argument the evidence that the jones is relying on doesn't actually support this conclusion at all if we look at dr gardner's a report what dr gardner actually says is that he administered testing and the testing resulted in a score that fell in the range of dimentia seventeen out of thirty a very extreme degree of limitation but then dr gardner goes on to question the validity of that testing pointing out that there inconsistency is when you look at the individual sub tests and then he ultimately declines to diagnose dementia if you look at the last page of his report the diagnoses he makes are actually suspected mild  cognitive disorder that is not dementia dementia is a very serious condition and the other diagnosis is an unspecified mood disorder unspecified according to the american psych psychological association means that there's not enough information for the clinician to make a firm diagnosis he then follows it by saying that that jones has has said he has moderate has described moderate symptoms and has said that he had more severe symptoms at some and identify point the past so if you read dr gardner's opinion holistically he does not conclude the jones has dementia he concludes that test results are questionable indicating that he has dementia and dr gardner alternately declines to diagnose dementia or endorse any sort of impairment during the relevant period as you got it would you address the last point made  of medical records and the inability of the agency to find out these medical records and ask the attorney are there more medical records that we should be aware of that we should be pursuing his answer was no not that i'm aware of right which is why i find it curious you seem to be making your opening argument no so that's why i'm a little puzzled by your position today i misunderstood i apologize for getting down into the weeds instead of starting with the big picture where i should have our position is that there was no medically determinable impairment established i would just i would die during the covered period right for the for the covered period yes so counts are opposing counsel the argument is that there was a there was an error and i appreciate that thank you that helps me get back in the right galaxy raised specifically at the hearing and jones as attorney was given the opportunity to submit briefing on the question of whether the claim should be bifurcated or not his briefing that he submitted ten days later was all of two sentences and it said yes there should be a b jones is now changing his position here on appeal as opposed to what it was hearing that's the way it looks to me and that's why i'm trying to struggle with this procedurally why we're even getting to dr gardner's report because that came later i  at all your honor yes this was correctly done is a bifurcation there are no overlapping periods between the two applications and that is the important element here even though on the s s i claim jones identified an onset date back in two thousand and eight when it comes to as a site's import to understand that the relevant period isn't the date identified for onset like in a title to claim this is this is kind of where the primary difference between these two different titles comes in you are only eligible for disability benefits under s s i as of the date you file your application and jones filed that application in september two ten thousand one hundred and forty nine months after the close of his insured status for title two so there is actually a nine month gap between the relevant periods at play here there is no overlapping period that had to be addressed and so under those circumstances the regulations are clear that these are not  related claims and should have been by for bifurcated as joan says attorney correctly acknowledged after the hearing and i would also like to point out that jones a social worker did not actually claim that he had been taking jones to medical points for eight years every other week his statement is rather brief and he says that he has known jones for a long time and he refers to taking him to medical appointments though this is after some of the medical records we have in in the file so there's no reason to believe that there are that the social worker was referring to any sort of medical visits other than what we already have and when we look at the medical records that we have which are close in time to the relevant period which the l g did and should have done they consistently show mental status examinations that are completely normal no abnormalities of mood effect or thought disorders so while his application contains a statement from his mother describing extreme symptoms of psychosis there is no medical evidence to support that whether it be from mr byrne the physician assistant who was who was administrate in this  nothing in the administrative record or the materials that joan submitted to the district court that support the idea that he has psychosis at least not from anyone who is qualified to make such a diagnosis and the mother is describing extreme symptoms talking about how he is communicating with aliens and beliefs a religious figure but whenever he goes into see a qualified medical professional who could make these kind of evaluations there's no hint of that  the mental status examination reports consistently say no abnormalities of thought no thought disorder or others related abnormalities so the l j correctly found that based on the evidence in the record that jones failed to establish the existence of a medically determine impairment and under the statute if you don't have a medically determine impairment the analysis stops right there and you cannot qualify for disability benefits therefore if there are no further questions i from a year previously on title two and you get the date of application the judge makes a determination on the date of the onset there's no sort of overall as far as the the attorney waiving the rights the attorney said he did not from what he knew by interviewing you know there were no records because christopher jones has dementia  and it's not he's not normal in his st standardized testing of dr gardner he was not that's ambiguous that's outside of this record we could ask but he did not make a determination that he's fine was he gave a mini mental and said he can't spell he can't concentrate and he's not functional and that's dr gardner's report you know what the problem and that's what you might want to read but if you can point us to some medical evidence in the record that support well the problem is he's going to a homeless clinic and he goes in and out and gets whatever treatment he felt he needed further treatment he couldn't get treatment because he didn't have medical coverage so we have twenty pages of just ambiguous not much and we on standardized test seventeen out of thirty it's objective testing fifteen to thirty is dimension seventeen out of thirty is severe dementia and that's what is on that test and he does not say this test is not valid that there's no i didn't read that that way if the justices did and i didn't see any of that and it would be i wouldn't have discussed it much if it had but that's it's a valid test at standardized so he gave it to him and during the hearing in that conversation christopher was very coherent on the small reality that he deals with he is not going to burst into psychotic things it's over a long period of time he he  focuses and and straight and narrow in the area that he can't and the case of jones versus saul is submitted