hearing without a representative at the time of the hearing there were no medical records since july of two thousand and twelve and the hearing was in may of two thousand and thirteen so it was clear that quite a bit of development had to be done at the time of the hearing with her a stack of records and and stated on the record that she was not sure if you brought everything she said this is my first time doing this the judge assured mr jackson that she would get all the relevant and  medical and medical records not only the judge do nothing other than accept jackson's records into evidence but a review of the of the record indicates that the medical and medical evidence was seriously  incomplete in this case the so our position is given the heightened duty to develop the record particularly with the claimant like jackson who's suffering from cognitive and mental impairment and who was led by the l j to believe that some sort of development effort would be undertaken on her behalf that was represented before the counsel am i right about that she she did obtain representation before the appeals counsel that that's correct and there were additional documents here there were additional documents submitted at the appeals counsel that's correct does your and i have any further question about that ok so so our position is that the that the that the l g a did not adhere to that heightened duty to develop their record and i would note on that point that the commissioner concedes that a crime it does not have a duty to cure and elegies failure to develop the hearing record at the appeals council they can see that in their brief so the commissioner and advances i would say two main responses to our argument the first is that we're simply speculating that there put that in my reply brief in a chart and i don't believe you can look at that and say that there's not records missing in fact the commissioner doesn't really specifically allege that any of the records we just we state are missing  aren't missing and said they just kind of vaguely say were being speculative and a big part of that allegation of speculation is unfortunately based on a misrepresentation of the record the commissioner at three points and it's  brief says that the way that jackson's evelyn branded records were submitted into the evidence is that they weren't handed over by jackson but they were facts by jackson's therapist to the to the agency now if that were true i think that would make a difference because if i am a if i'm a judge and i'm receiving evidence from someone's therapist i think it's reasonable to assume that i am receiving if not all the records at least most of the important records but that's not true and the commissioner has been on notice for many months now that that there's no good faith basis to assert that these records were facts by miss hill to the agency it's very clear from the hearing transcript that jackson herself submitted them and i hope that the commissioner will concede that point and correct the record and their remarks so it's clear that we have an incomplete medical and medical record that the commissioner's next argument is that well even if even if there was an incomplete medical and medical record it's not clear that this would have changed the result and here to jackson strongly disagrees these these records from the seven different sources treated jackson for her mental and mental impairments during the relevant period no case cited by the commissioner and no case that i am aware of says that records from seven different sources that the l g failed to inquire into related to a claimants primary disability can assume to be harmless and under the bushy case all claimant has to do is show that the records could change analysis and so given the sheer amount of records they're missing given that they relate to her primary disability i think we've clearly met that burden with regards to the missing medical evidence and then there's also the medical evidence we submitted as as as your honor noted we submitted educational records listing level for intellectual disability is seventy so that's very close and that was an i q score from many years before so this was your pre morbid i q and then and then towards the end of the relevant period we have evidence that jackson is developing what appear to be acute and emergent cognitive issues she's missing buses she's showing up to her doctor's appointment at the wrong time dr reddy  g should have gotten it but now we've got it and we give it to the appeals council and they say it doesn't make a difference right now and i realize it's not incumbent on you to correct but having brought the records to the appeals council's attention is theirs and the appeals council having considered them is there still anything left to the argument that the l j should have gotten these records other then that really what the  have done with the appeals council should have done is ordered supplementary testing given the confluence of very low i q in middle school or high school when i read these were done and evidence of deteriorating cognitive capacities as an adult i think that i think that you're essentially correct i think that you know the appeals council see them over time just finishing my responses question  the appeals council did consider the evidence and him and implicitly found that it was not new and material this court and any reviewing court can review that decision and disagree with the appeals council because it is preserved in the record for judicial review certainly our position is that it is no one material in light of the argument that i just made but even if you even if you disagreed with that and said well the council was correct jackson was still prejudiced by not having this available at the hearing for the exact reason that you said it it would have triggered a for further duty to obtain an updated consult of examination particularly because we now know that her therapist called into question her that that was harmless could you address that point yes i do not believe that it's harmless and how do we know that i don't believe that it's harmless because again our contention is that there should have been further development of her of her intellectual capabilities it shows that it shows that the l g a misconstrued the evidence at the end of the period where jackson was having these emergent cognitive symptoms where she was where where a doctor already noted that you seem to be having medical memory problems that you seem to be having cognitive if show is show that if you're the elgin you really believe that that means he's ruled out a cognitive impairment why would you develop the record any further you know the treating physician has ruled that out if the l j had properly understood that i think it opened i think it opens the door to how significant those those later records are that show that she is developing some serious issues and it really undermines the assertion that there is that the record doesn't point to anything that shows a decline in her cognitive abilities from the time that she was working as a nurse you know the elder relied on that and said well she worked as a nurse and nothing points any cognitive decline claimants rights to inch by ensuring sufficient development of all the relevant facts and by scrupulously conscientiously improving probing into inquiring of and exploring of all of the relevant facts they all day j did that the jackson reported to the administration at both the hearing level and earlier that she received treatment evelyn brennan from counselor to the pony and from dr reddy she reported primary care physician treatment from dr dinner ono at the hearing she reported social worker treatment with the social workers in chile from unity pros where she had very recently started treatment she reported a history of learning disability and what we what the l j possessed was a complete medical history from all of those treating sources the jackson has not identified that any of these sources were overlooked in the record and what else is important to those who just said that the most recent records were about a year old with you know what he's saying is that the records at the time of the hearing were about a year old and this goes also to jackson's point about the from the hilts fax at the hearing jackson submitted a volume of records and in that was thirty seven pages faxed from from counselor hilt immediate to the to the agency the cover letter identifies thirty seven pages the subsequent thirty six pages in the record there is a fax header that shows that each of the thirty seven pages didn't make it to the agency it covers a period of february twenty twelfth through march twenty third july twentieth twelve through march twenty thirty there's no indication in that record that any treatment is missing and includes record record of treatment from counselor hilt well as dr reddy and counselor prince there's they'll do it was reasonable to believe that this evidence was complete and it represented her treatment during that period and i was too and i want i should also remind is that what's important is that the elegy bases his decision on a review of the complete medical history and that there are no obvious gaps it doesn't matter what happens if before the hearing there's a lack of development so long as the l g did ensure the development was complete at the time of writing the decision and here because of drug use in fact dr reddy merely reported cleamons own or jackson's own reports that she she had memory of decline because of drug use he observed on that occasion that jackson appeared to be having cognitive  that she eventually gets fired because she can't do the job oh no she touches she's testified that she was sleeping on the job she also testified she was fired because she could not switch or shift so she could care for her mentally ill son which on the job and there may not have been why is there not well if you have someone who if the educational records had been obtained would be known to have a borderline i q before she starts this process who then engages in drug and alcohol use that her primary physician has concerns about what her cognitive capacities might be why is it not incumbent to try to find out what those cognitive capacities are particularly is there not a problem that the l j thought that the doctor had ruled out cognitive problems when in fact the doctor was doing essentially the opposite saying i noticed these cognitive issues and we need to rule out that we need to work on that and the record doesn't show a definitive diagnosis that this was converted to a definitive diagnosis and also doesn't show dr reddy ordered or felt the need to order missing document where he did further examination of that subject well jackson testified at the hearing that she had recent had stopped seeing dr reddy at the completion of her chemical dependency treatment there's no actual evidence that there are missing records or reddy let's assume that for the moment that he didn't order any further i q testing she drops out of treatment but where we're left is that the doctor was concerned too about the need to rule out cognitive problems and now the l j is in a position to get a consultative expert in and find out and do that ruling out you're saying because we have we have all the records from ready so we don't need to do anything from well your honor they all she did consider the impact of cognitive impairment on her functioning he looked at education records he found she could she was not capable of performing that work as a semi skilled c n a and he accommodate them on the basis of what if it's found that she no longer could do the work that she had done which is sort of the basis for saying her cognitive impairments aren't that great but she can't do that anymore on what basis do we think she has the cognitive ability to do something else a review of her mental status examination findings her own reports of activities of daily living her ability to care for her son to get out of the house with her her neighbor  she's able to she said at the hearing attend all of her ability to care for her son includes serving campers now which is for dinner for days on end because she's not able to get up the energy to get groceries or do any cooking she also takes him to daycare when when she tends her own appointments she takes him to the museum in the park so that he can live a normal life she says she's she's independently caring for a mentally ill son which this court has decided is significant evidence that undermines subjective complaints of inability to work and they'll consider that oman with the evidence of her learning disability and her cognitive impairment as measured by dr reddy and other treating sources there was no gap in the record as far as i q test really opinion from a treating physician that says she can work there is not in the records not in there's not and neither is there an opinion from a treating physician that says she can't work right there's neither and the record didn't require a treating source this this court has made clear that the record development is not needed even when there's no treating source opinion where the record is complete and where there are no obvious gaps and here in the review recently a mineral they said that where there's evidence of a and therefore we can presume that he did go through the factors he also based that finding on the supplemental briefing from both parties the commissioner submitted an initial letter motion explaining to him his requirements under four or five g jackson was permitted an opening reply brief or an opening for supplemental brief we replied and i should know that jackson in her supplemental briefing never actually argued that there was no there was good cause for failure to submit this evidence earlier therefore this is been waived and quite frankly she hasn't met her her burden to show that the seven in should be reviewed and the chris core interop was specifically concerned with an unending lack of finality of the administrative judicial process if plaintiffs were allowed to continue to submit new evidence and this evidence was dated more than two and a half years after the close of the administrative process it's provided by treating a social worker who did not give treatment  to jackson during the relevant period there's no indication she reviewed records of treatment during the relevant period and therefore it's it's very immaterial and just i think alone of the judge the district court's specific ruling on this is sufficient and there doesn't need to be further examination of the evidence which is clearly immaterial so with regards to jackson's child care and specifically the monroe case that the commissioner mentioned in that case the claimant was snowmobiling one on multiple cruises during the relevant period and was horseback riding ok to compare that to just having a child i think i get i put that in my letter and i believe it i think that's i think that's misguided and offensive i think jackson status as a single mother is not comparable to those activities which are indicative of a fraudulent disability claim regarding her child care you know they mentioned that while she took her child to get day care daycare fourteen she she testified that she was having a hard time keeping up her home because her son could be very overwhelming record fifty eight she said to challenge to deal with her son at times record sixty four point is the record is replete with instances that she was having a lot of difficulty caring for her son and so i don't think it shows that she's capable of simple work and with regards to the commissioner's statement that there's a complete  treat treatment history from dr reddy that's you know that is is not correct in my opinion jackson testified at or hearing that she had seen dr reddy a couple weeks ago the hearing was held in may of two believe was may seventeenth two thousand and thirteen the last treatment we have from dr reddy's in march so clearly there were other records from dr reddy you know given what the pros program is it's basically a life skills program it's very possible that there may have been an i q score requests that there and the mere fact that dr reddy didn't request an i q score i mean maybe they don't do that at that institution maybe it's just not something that's available at that institution i believe that given the pre morbid i q scores which he should have obtained given his complete misunderstanding of the rule diagnosis and given that dr reddy clearly endorsed the fact that that jackson was having these kind of acute cognitive issues it was it was incumbent for further development and and we request remained to the district court for that purpose thank you thank you well