good morning if it please the court my name is elizabeth hong's on behalf of sheila morris now this case turns on one very clear error when faced with a pro se claimant with only a ninth grade special education the algae failed to develop the record  way instead of developing the record he chose to make a decision on an incomplete record that consisted only of twenty four pages of total medical evidence and he decided morris just didn't seem that bad now this case needs to be looked at through the lens of sheila herself she was under represented she had only a ninth grade education she indicated on her disability reports that she had been in special education she had only it's from an unknown private business i can only assume it was claimant it was in i believe november two thousand and eleven and it came from i believe island shipping center and this was actually in november two thousand and eleven which was significantly before the letter at that defendant and actually at the district court level said that dr gomez got in responded to you there's actually no evidence that the algae himself level it appears so there were some records illicit now the the actual hearing wasn't until march twenty third team so we have records from i believe the last actual treatment records that we have from d gomez's office more in october two thousand and eleven what we have after that were medical source statements that did not have a corresponding medical examination which can only be assumed to have been now this is it says it's page one of two it appears to be what the claimant would be given when she leaves her appointment it doesn't actually have the doctor's findings it doesn't have what the doctor diagnosed her with it has what she said claim nt your patient complaints reports but looking at the what is there that suggests that there was a need for furthering because the district court the agency seemed to think that there just wasn't enough here to think that her  limitations were totally to say so what is there that suggests there was a need for further inquiry on that point well what we know we have from the records we can see that there would be at least three more complete treatment records actual treatment records from the doctor she indicated she had an appointment in january two thousand and twelve the one of the medical source date means indicate she was examined by dr gomez on may seventeenth two thousand and twelve and there is actually don't know right now she was during this time prescribe opiates that indicates that she would need to have consistent treatment to keep her prescription she was prescribed lortab for pain so that means there could also be additional records from that two thousand and eleven to twenty thirteen when the hearing was excuse me this village she indicated that she had carpal tunnel syndrome or the a l j found her to have the severe impairment of carpal tunnel syndrome obesity hypertension hypo thyroid and degenerative disc disease now claim it herself testified in a very rudimentary way she said that her nerves were going all which ways she just cried that are blood flowing in the right direction she had something in her arms so her ability to actually articulate what her disabilities were i think was compromised and that should have put the l j on notice that he was required to do she say well the issue becomes that was in two thousand and ten first of all that was before the relevant period second we also have dr gomez's report in two thousand and twelve that indicates she did have mental limitations and what that can be read in the way most favorable to the claimant is that she worsened during those in her intervening years to say that you could just rely on one statement and twenty ten which means you wouldn't have to develop the record in any way for i'm not even saying just mental x pretty extensive physical limitations and extensive medical or mental limitations and without the actual treatment records from dr gomez from two thousand and eleven to two thousand and thirteen when we know that there were at least three records if not more missing it makes it impossible for the l g to properly determine which medical opinion to give way to it's also concerning i know it seems like it may only be three records but this court has had a very long history of protecting that you need to have a complete record this isn't a game of for shoes this isn't a game of candidates this is an issue where you need to have a complete record we have this court decided in lopez one four day hospital stay and in another case in tailoring barnhart the case was remanded for a pro se claimant just to check the person's physical weight because that was a relevant issue so even if it is only the three records that we know are either missing or incomplete that is enough for this court according to its president to say that the a l j needed to scrupulously and conscientiously protect the end she to be able to admit the previous but at least you can contact the doctor you know whether or not they're going to support this argument because you know we're in a situation where he was also evaluated  got quite specific findings says to her ability to have ranges of motion in their not consistent with complete disability so if you're saying well you know despite that if we were to get her doctor's records that that would support her claim i'm just perplexed as to why we don't know that well at this point we also as far as the neurologist treatment she also had  gomez saying on two separate occasions that claimant was disabled so if she had neurologist treatment that indicated a good range of motion that doesn't indicate anything to her carpal tunnel syndrome that doesn't indicate anything so which is something that she described at her hearing that it was a problem for her even though it was a very rudimentary way i think we need to keep going back to how miss morris presenting to the l g a was it fundamentally fair that the a l j knew all the rules judge mcdougal is a very respected administrative law judge who practiced for a very long time in our area he knew the rules and what he decided was without getting the balance of the treatment records she may please the court graeme arson on behalf of the commissioner plaintiffs argued the dr gomez's records were not adequately developed here dr gomez submitted two separate medical source statements concerning the eighteen month period issue from september two thousand and eleven to mar a thirteenth as well as submitting contemporaneous treatment records which reflected only conservative treatment and mild findings including normal extremities and full range of motion in all areas you say he submitted in response to what there were a number of requests here originally the new york state office of temporary disability requested records from dr gomez in december two thousand and eleven that's i one then in the record subsequently the social security administration sent a letter to dr gomez is in twenty five two thousand and twelve requesting all medical records to date that's one sixty one of the medical record and at the ministry of hearing the present to the plaintiff presented to snow records and the she left the record open so she could continue to submit records and the notes that were made from d up to date correct and the he also opinion submitted to opinion statements which are important because they show a comprehensive overall view is and at least heard the latter opinion statement it was simply not robot reliable dr gomez alleged serious limitations in seeing hearing speaking social functioning and making simple decisions none of which were rationally related to plaintiff's diagnosis of back pain or supported by any other diagnosis or she has sufficient mental deficits mushin that would fund the seeing and hearing are certainly totally unrelated to anything and there are no mental health diagnosis in the records and doctor going it certainly wasn't treating her for anything along those  valid only mild carpal tunnel syndrome and recommended only conservative treatment dr brewer stated that mars could return to work and that he quote found nothing remarkable on physical exam you also plaintiff's own testimony which undermined her for like twenty five years at the time of her hearing and she stated that i mean the o j asked her why haven't why can't you work and she said that she didn't have to she didn't want to and no history of doing so long before stance that when mr morrison says that claim a testified she didn't want to work that never happened now there is absolutely no case law that says if a person runs off at the age of sixteen and gets married that the l j doesn't have a duty to develop the record that is completely irrelevant now as far as the claim that dr coning examination that was his for plaintiff's carpal tunnel me for more says carpal tunnel that actually indicated that she had moderate carpal tunnel syndrome now the jobs that were found at step five i believe it was cashier and fast food worker those as i indicated in my reply brief all require constant or frequent handling and figuring fast food worker work the register but you may actually be reaching for a friday ben you may be flipping hamburgers you may even be cleaning all of those things could now i'm just there are plenty of jobs to be honest in the d o t that require last thing constant or frequent handling and figuring so based on the selected characteristics which specifically identify as the needs of different jobs  throughout the national economy there are a lot that don't require but the ones that were found at step five for this appeal did require frequent handling and angry so to say that dr codings opinion blankly supports the  c is is not appropriate also because the record is incomplete we don't actually even reach the substantiality argument you're looking at moran or tippett ok says that were decided by the circuit we don't actually reach substantiality it's also concerning that they're indicating that medical source statements that didn't have a corresponding examination or had a corresponding examination that was not in the record were treatment notes that the l j could use to make its determination  basically commissioners argument is that the male j could compare dr gomez's statements to dr gomez's statements and reject them you need something you need a basis to compare these opinions