four point nine seven zero the appeals council will review to determine if the ail g s findings or conclusions are not supported by substantial evidence this is not a preponderance of the evidence standard that's made clear in the helix which is that the appeals council was required to consider schlosser's mental impairments because they ailed j made a finding that his affective in anxiety disorders of affected only air that's part of the whole thing is this is the there's nothing in there if you look and you can specifically see their their portion and their decision they outline and conclude a bunch of evidence and say how this does not support the algaes conclusions but all pertains to cervical spine and  policy which has to take into account this evidence and then determine when you have a progressive condition where disability began so she said it began where in early two thousand and eleven at the amended onset  council in contrast never evaluated the evidence she considered never evaluated the slicers testimony from the hearing which was quite substantial about how we needed to take breaks how he changed his career path to a com him his back problems following his surgery in two thousand to work in two thousand and nine basically doing construction work for friends and family who are trying to hell amal how he took breaks how  spent his day lying down periodic lee because of his back problem the judge pointed this out in her decision judge needs him who by the way he was an all member of the office of general counsel for sixteen years in the denver office before she became a male j to all this new college specifically notices this mentions repeatedly i think it's three different places and her decision that she found mr slawson is testimony to be credible and decided her limitations based on that she stated the old state agency doctors had limited him to light she found less than that because she believed him and so on him credible with regard to your honor's specific question about the mental disorder the judge took into account his mental disorder even though it was not a severe impairment because under social security rules and regulations full severe and not severe  considered and so she took into account his statements which included the fact whether you call it because of depression or because he reported that his pain was severe enough that he had to take breaks she limited amount of his than his statement that he suffered from depression in the past what evidence is there that he suffered from mental impairments during the time period issue his statements and subjective statements are sufficient if the judge believes them if there some credible evidence to support it because there is nothing that because i'm trying to get at this mental impairment seems to have an impact on the physical situation and there's really no mention of that in the end part of the problem is and this is other point that the appeals council never address mr slawson or had no insurance until early two thousand and eleven and the fact is they were they are critical of him for having minimal amount of treatment and having spotty record medical records that never took into consideration that he didn't have medical insurance did he present evidence to support his assertion that those infrequent visits were due to financial his financial situation it is lack of insurance his statements  just couldn't afford it he he had indicated he'd moved to wisconsin from illinois in early and two thousand and nine did not have insurance until his wife got a job working for spiralis clinic them provided insurance for the family and he started seeing doctors at that time and that's in the record itself where he notices  g m but there was no real discussion by the appeals council as to their consideration of his reasons that he failed to have frequent treatment correct that's correct nothing nothing that they com contradicted by the appeals council or address so it's very difficult to see how the council's decision shows that the judge did not exercise or the judge's decision was not based on substantial evidence and there's nothing to even criticize the insured correct that they did not look at the whole record they they did not look at what the l g s decision was what the basis of her findings were they then took and did their own independent review changed in the only cited facts that they felt were contrary to war benefits without addressing any of the others and then didn't even do a proper credibility assessment because they never at any point whined what part of his testimony or any of the statements that he made in his adult function reports or other forms that he completed were not credible so that's a two fold they expects either their bird approved and they still to undertake the productivity assessment good morning your honour's lou hon on behalf of the commissioner of social security we are talking about a eight to nine month period in this case from january one two thousand and eleven until september thirtieth two thousand and eleven when mr insured status expired so we're talking about a very finite period of time and so was it appropriate for the appeals counsel to give significant weight to the lack of medical business but not to consider his statements that he lacked adequate insurance and financial resources well that's something we did address in our brief your honor and that's a very good point which as the district court pointed out was not raised in the court below but to the arguments that are now being raised in this court about the lack of insurance by mr schlosser's own statements in a functional report that he completed i believe november two thousand and twelve he said that he had periods of uninsured being uninsured and began getting treatment for his low back to general disc disease in those symptoms so really it's but for perhaps the month of january and it's uncertain the rest of this eight to nine month period issue he had insurance by his own statements so that argument really doesn't take to go very far are to help mr schlosser's case because he had that insurance coverage by his own admission as early as february two thousand and seeing if the a l j decision was supported by substantial evidence right which is the big issue here because that substantial evidence standard is something that mr slawson or is making a great argument and putting a great deal of weight upon and we would like to focus on the parts that the appeals council actually agreed with the l j because a great deal of the r f c in this case is actually the same between the decision which is no longer the commissioner no substantial evidence supported are the limitations for three car to the flexion and rotation of the neck the unscheduled breaks throughout the workday as well as being off task for more than ten percent of the day the latter two have to do with the mental impairment switch your honor and fired about two opposing counsel and those mental impairments are where significantly the appeals council found no substantial evidence to support the appeals council's decision makes very clear that dr clare the t v todd was a treating physician who only began seeing mr foster about a year and eight months after his insured status expired is where those limitations come from those limitations being found nowhere else as your honor points out there is a reference to depression again a couple months after the expiration of the insured status but it's those limitations that have really no support in the evidence and the appeals council reasonably found the substantial evidence didn't include it didn't support their include so where is it in the opinion that they consider his mental parents well your honor it's clear on in the ministry to record on page eleven of that record of that opinion and it's that page which although the appeals council doesn't specifically articulate every single thing found on that page that's where those first whole paragraph the paragraph begins claimants and it ends with to his treating physician clara knew to be god ok so where is it in there that they talk about his mental issues well your honor that's where those come from and the while the appeals council didn't specifically address every single notation and piece of evidence i understand but you know i just want to see one word where they talk about as little situation right and the point is actually a good one because we make the point that we would like to see any piece just one piece of evidence during the relevant period that talk about his mental situation then i'm saying there's no comment by him on that page about anything involving his mental situation so it's not something like we've looked at it we don't think it's enough you know when reviewing what happened below and we don't the that the head we don't think those disorders affected i mean they're i not in their right the records are in there there's no reference to it right the only reference runners correct is that this doesn't cover the relevant period of time this is one year and eight months after the date last short so whatever is in that opinion which the appeals council clearly looked at your honour's correct the appeals council did not reciting everything that was in that opinion but that opinion as is right there in that paragraph right before and then one where where did they  talk about his lack of adequate insurance being in the problem with financial resources just remind me because there's going to it is actually your honor and that's not a specific finding by the appeals council and that issue is being raised for the first time here before this court but the peals council in the prior page page three of seven if you flip it over talks about the treatment history it's in that history which is  a handful of treatment records during this eight or nine month relevant period which the appeals council is finding to not support the fact that mr schloesser would be totally unable to do any job in the economy this discussion of the evidence actually even begins before then on page so there is no reference then on this page three either about the gaps i mean they just make the conclusion because there are no records they are correct in that list and so what i'm saying is are no records there because he didn't have insurance and he couldn't go to a doctor because he didn't testify he was having issues during this time period correct he did not testify that he had insurance problems no i mean or shoes i mean issues in terms of his physical situation so what i'm saying is there may not be any medical records that talk about his physical situation that he's testified too because he couldn't go to the doctor because he couldn't afford insurance ok so when they are reviewing the evidence that can become a factor that gap has an impact the gap of lack of insurance at least as i understand the timing and what his argument is respect impactful into the period of time before his alleged onset day there is this testimony about his lack of insurance before january two thousand and eleven but as of february two thousand and eleven and this is the only period that is relevant for the appeals council talks about the treatment that he was able to seek and as your honor points out prior to two thousand and eleven perhaps the gaps in that treatment are because of the fact that mr schloesser was uninsured but as of february two thousand and eleven he  treatment physicians treating doctors such as dr kraus her doctor but leskie in the months following the expiration of his insurance status he even visited an orthopedist the doctor doleman and then years later he  council decision really focuses on the fact that for this eight to nine month period of time there are not the significant reports even from mr schlosser himself who raided his back pain for example is a two out of ten who right before the expiration of his insured status in august two thousand and eleven saw dr krauss author for abdominal pain and abdominal symptoms but may no other reports of pain also told his treating doctor dr but lasky during this relevant period of time he was not taking prescribed pain medication this is the evidence that the ala j dent found disability on and it was more than reasonable for the appeals council to in its own decision say that there is just not the s support those three other limitations which are the only three that the appeals council removed from the r f c and that was significant enough to then make it so that the finding was mr shaw sir could perform significant numbers of jobs i see that my time is expired unless your honour's have any i just one question it was march of the love that he went to but let's ski and talk about his lower back pain in that it was like five months later he's treated for the a little pain this is this is the period when he's on insured in correct your honor actually that's the period he has insurance as of february two thousand and eleven based on his own functional report he completed that report i believe in november two thousand and twelve and these are reports that claimants complete as part of their application for disability he completed that report himself and he said february two thousand and eleven he began going to aspirants clinic which perhaps is where he saw a doctor but leskie and as of that time he had insurance so this relevant period of time from january to september two thousand and eleven was mostly insured started going to the doctor correct and it's telling because that's when there are some treatment records but the treatment records really just just don't show the kind of severity of some one who's claiming complete disability  significantly the next complaint that things do occur months after the expiration of his insurance of course being on insurance does not also mean the person individual who has not worked for two years can readily afford to go for medical care with doctor bills and co pays and the evidence in the record where he testifies to that chains decision and she states in the middle paragraph right before number six in her decision on page twenty five the record that she makes these findings that differ from what the elder the appeals council did because of his credible testimony regarding his pain yet there's no evidence the pills council did any assessment of the subject of pain no assessment as to whether any medical treatment for his back would have been a marriage especially with