i next case for argument is not head st is the commissioner does this court have authority or jurisdiction to consider the failure of an administrative law judge to following the man's order from the appeals council and it seems like both parties are in agreement that this court does have jurisdiction over this issue and so i wasn't going to comment further on this just rely upon the supplemental briefing in the study had a question and the nd issue raised i think these kind into the heart of the dispute between the parties the nd is was assuming the court has such authority or jurisdiction when does a failure to follow a remained order justify a reversal and i think both parties are in agreement that there has to be some harm caused by the administration law judges failure to follow the the appeals council order a remount in the main disagreement i think between the parties on this entire people is whether there was actually any harm by the administrative law judge not juggling just a quick question enough that's basically it and with really no intellectual justification whatsoever and i don't think the appeals council actually has the authority to ignore the federal regulation that applied to its own which does require the administrative law judge to comply with the order remit so i don't think the appeals council can simply just waive that as as why don't we call the st appeal the that resulted was the  position is that it was it was very harmful while he really helped but the appeal decision was that it was not the decision on appeal basically forgave the  non compliance but that's what they wrote without really explaining why that is true and i don't know how they could come up rationally with that opinion well i mean at the end of the day according to the showed a lot of cognitive dysfunction in from the claim and so the claim and it's very clear in the record he's very poor he can't really afford a whole lot but he did manage to get a test done by dr richard madsen and that was the only objective testing in this case and that testing showed that if those results are true then the claimant is in fact disabled there's really nothing else in the record that would justify ignoring not precisely correct i agree with you precisely but other evidence was obtained right to supplement the record that she preview slavery did not on the i would say no i'd say is just the testimony of dr james bruce who's just listening into the claimant testifying and he admitted that the test that was done by dr manson was administer properly as far as he was aware he said that on cross examination he also admitted that if the findings of that test are valid that the claim it is a fact entitled to disability benefits and well i thought he also said if if those findings were true there would be other indications of mental problems in his record and and examinations which there were not well that's that's a matter of opinion and i think the evidence actually contradicts dr bruce on that for example the the mental mental examination from dr lawfully what that examination showed was actually very consistent understand the didn't know the season three points were lost because you can spell the word world backwards he couldn't remember three objects so he lost another three points he wasn't the last few points because he couldn't follow the  command close your eyes and he lost another point because he could not write a sentence that is not a person can showing a great deal of cognitive functioning and yet dr bruce characterized it as showing that there was  inconsistency between that performance and the testing by dr madsen and i would say common sense tells us dr bruce is wrong that somebody who can't even write a sentence or follow an instruction close your  is not very functional also take a look at the the testimony that dr bruce completely ignored the claimant testified that he had trouble completing senses he would forget words he couldn't think of the word to use the talking about he couldn't remember he went on a story about crossword puzzles a bit he really didn't know what use was talking about he said he's living in a garage and he said that he was waking up in the mi night riding a bike commuting know how to use in that situation he couldn't even pay his bills he had to spend two weeks trying to draw a drawing so they could sell it for thirty four dollars to get is some utilities turned back on there's nothing in counsel in his supplemental brief refer to some records are i think on page nine of his brief saying that these records show that the appellant was functioning very well and one of those records is on page seven  one of the exhibits and that's the only record that opposing counsel referred to that has anything to do with mental health the that's from the spanish peaks behavioral health clinic and reading record about mental status or results of many mental status exam it reads author rigidly arthur rapidly cycled through emotions and thoughts as he responded to questions also indicate  his speech was ten general and could be related to his head injury he had characteristics of antisocial personality disorder and further assessment will determine if it is his personality or learned way of determine what's going on and that is exactly what the appeals counsel wanted the administrative law judge to do so and so on the merits and the usual review that we would conduct under forty two u s c section four o five g you would say that our record is in adequate to support the a l j is conclusion right because what she's doing is saying well the record isn't fully developed therefore i'm going to hold it against the appellate when the whole purpose  order was to prevent that from happening and think about the situation the appellant is in he's poor he can't afford to get this done and when he did the administrative law judge said i'm going to look at that because you pay for it with skepticism so regardless of his ability to afford it correct and i think it it really should have been done just with the i would scuse me i'd like to reserve the rest of my time for shocker represent the commissioner of social security it sounds like the court is interested in the question of the standard of review and whether there is harmless error here if we're talking about the standard of review that is substantial evidence which comes  own and make a factual determination ignoring aspects of bream and order and i'm were told that there was a subsequent appeal and that on  appellate review the pope beals counsel two issues the appellate decision basically not answering the question about whether there was noncompliance with the final decision for purposes of your review so the appeals council's denial of review in twelve thousand and sixteen i believe is actually not before this court and when do we consider it since they said hey that's ok go ahead i think that's an indication of how the court should look at the case your honor giving deference to the meaning it doesn't carry the day when we consider it that's correct or are given deference to the appeals the appeals council ordered remain and that includes a number of mental status and psychiatric examinations by mister treating the treatment providers those showed a grossly normal mental status normal af ect normal judgment in other cases in other at other times mental status examinations showed average intellect intact judgment intact attention insight and especially in tech memory so it's not th we also have the testimony of dr bruce and one of the things that's important about dr bruce is not only did he observed mr at the administrative hearing but he also reviewed all of the medical documents in the record which he testified to on page fifty at the very beginning of his testimony so so you can make a diagnosis by sitting in and watching a person testify and looking at the medical records i don't know that he made a diagnosis your honor but what he could do was evaluate his certainly his observations of mr at the hearing but also his review of mr murray has medical records so and dr not a diagnosis is what was as i said your honor it was a it was a testimony about action and his or her appeals counsel shell take any action that is ordered shell certainly your honor i think that we have two arguments there the st is we don't believe that the l j violated the rebound order as we explained in detail in our briefs but even if the court finds that the l j violated the remainder order as both parties agree harmless error principle should apply and that's something that this court has standard the legal standard there which is that the party challenging the action below has to establish that they've been harmed that's consistent with the supreme court's decision in shinseki versus sanders which is the two thousand and nine case we start in our brief s and the problem here is that mr a ha has not shown how he was harmed as we've discussed in our briefs substantial evidence supports the l g s decision substantial evidence doesn't mean overwhelming it doesn't mean that there was no other possible outcome just mean has to mean it was one reasonable outcome based on the evidence that the supreme court recently reaffirmed that in the beast decision it's more than a mere scintilla but it's enough evidence that would convince a reasonable mind and the evidence following that mr jerry howe submitted normal mental status examinations normal psychiatric findings as well as dr bruce's testimony more than meets that standard and so mr has been unable to identify the harm that happened that occurred his argument is essentially a violation of the regulation happened therefore i win but that's not what the supreme court has said the standard is and that's not what this is we'd like to think that the appeals coun aren't our belief is that the appeals councils direction was conditional they remain ended initially not because of the record a lacked evidence but because they were concerned about the ale jays evaluation of dr ale jaded do certain things in it in supplementing the record or in aid of eight i'm further review the a ill jaded does do it does something else and then and for legal sufficiency that's one of the things that we explain in our supper answer to the supplemental questions in the st section is that the court has the authority to look at both substantial evidence and legal compliance  but then applying the well settled principles of harmless error even if the l j did not comply with the regulations question is what harm resulted there has to be a showing of harm and mr has not made a sufficient has not made a showing of harm sufficient to merit remaining his case the you know the supreme court in the in the sanders decision explained that usually it's party below that's required to show that they were harmed by the decision and in fact it's only in the criminal context that the government has to prove that an error was harmless so here as we've explained even if the ale j did not comply with the did they said that they did not find a reason under our regulations to ordinary man and one of the one of the loot but they didn't say they didn't say that that's correct your honor however our regulations one of the bases under which the appeals council can grant review is if the decision lacks a substantial evidence so while the appeals council did not explicitly state that they had reviewed for substantial evidence the regulations themselves finding compliance with the regulations would show that the that the appeals council considered for substantial evidence and as i said they've been went on and they explicitly dressed mr ray has claimed that  concern that the l g had not complied with the appeals counsel remained order and found not only and so they found that there was no reason to remain under substantial evidence basis but also because the l g had not abused her discretion in complying with that order honor is that's the way that all social security or records are organized and so it's the st page of the record for your review thank you certainly so we believe that not only the substantial evidence support remand order for these reasons we believe that remand is not appropriate and instead the l j should be affirmed thank you thank you very much can say given this record that additional psychological testing wouldn't have come out in favor of the appellant and that's where the harm is in dr bruce even admitted as much during his testimony he didn't say that the opponent didn't have cognitive impairment he said he did he just was not sure of the level of cognitive impairment which begs the question question get additional testing then dr bruce never said he doesn't have the personality disorder he just said it wasn't developed in the record which means his testimony read it in the best possible light for the other side it still doesn't get around the issue that the administrative law judge did not develop the record and to rely upon a record that's not developed clearly to deny decision they're doing it based upon the administrative law judge is failure to develop the record further as she was instructed to do which i just think you know we're talking in circles at that point in the case should be reversed  for thank you thank you counsel thank you both for your arguments this morning the case is submitted