treating physician opinion evidence accurately the second is it seems to me you've got some pretty strong arguments that you failed to articulate good cause for certainly and thank you i think the the best way to illustrate the reversible error in that and with respect to the bias issue is this it's not me you're required under the regs to make to handle that  honor well and here's here's the reason why and this is really the basis for our for argument here and why the district court misapplied the law and there's this if you scrutinize the the date the procedural and in that he sued the agency his employer and included in there multiple attachments and specifically some of the attachments included his complaints about the local attorneys that appear before him but what he did in there is he specifically identified my three clients by their full last name and their first four digits of their social security number and then published in that same document that the attorneys commit fraud and and deceit on the court that was  to the extent that the recusal issues pertain to facts that have occurred since then and the event that you when it would seem to me you could raise those now on reman the the the lawyer in the circuit indicates that that's sufficient if it's raised at the appeals level but when i when i say and so i believe that was preserved there and again it was after the denied application a second time he did your honor and didn't all these disputes between the a o j and really arise before then well there were there were disputes yes and all the partment disputes arise before the a o j denied your client's application the second time no your honor the the disputes were were the basis for the recusal request here the recusal request was was based on the perceive the perception of bias against mr shanks attorney based on the this published hearing after there was a second the first hearing was the first decision was remanded and then after one month after that the remained hearing is when this this lawsuit was man was at the end of the hearing immediately or did that decision come later a decision came over a year after that second hearing yes ok and meanwhile right you have a hearing then the lawsuits that you're talking about but you still don't have a decision yet from day o j right correct so you could have raised that you could have filed something with the a o j after the also came into play even though he filed this lawsuit a month after the hearing it wasn't i wasn't served with any kind of notice that this lawsuit or anything it became known to me  later in the process it become known to you before the second decision before that you said it took over a year for the a o j to render that decision did it become did you become aware of it before that year appreciate that yacc your honor but i still i'm going to suggest that we don't have to get to that here and the reason being is because the the district court misapply the law here in this circuit the district court said that based on these facts we have what's at least a risk or an appearance of bias but they declined to remain ended on that basis and are lost in the law this circuit in our country says that is grounds for  that in of itself the appearance or the risk and the the agency cited numerous cases in their in their brief where this where this same exact standard was applied by the district court and the district court said well we're not going to remand to because of decisions otherwise supported on substantial evidence as it as your honor pointed out we've already i don't think we need to address that with the strength of the arguments that the decision was not be so substantial evidence but when i was concerned about couldn't argue we couldn't raise it at the appeals council which is when we did and i think the cases support that case i support it if it is raised at the appeals council that is sufficient and like i said i don't recall the exact timing of when i found out about the lawsuit and when i actually asked for the recusal but again i don't think we have to get to that because the district court is applying the law incorrectly in that regard and a decision here can clarify that either this risk or the appearance is enough and that and i would argue that the that the agency actually weigh that argument in their brief to the echo of the same standard they argue that we have to show actual bias and they never they never asserted that we didn't at least establish this a risk or an appearance and your i believe that it in of itself should be ruling when the cases remained it back it please the court my name is richard black i represent the commissioner of social security regarding the bias issue the problem with mr kirshner's case is that as the district court found not not simply that there was no possibility or probability of bias there was no reasonable possibility that the supreme court has given us t do i sort waiver yes i think that's a difficult question under the regulation that we that we cited in our brief that deals with that the claimant has to bring the issue of bias to the agenc attention at the earliest possibility right now and you know that becomes difficult because the question then becomes when do i mean mr cookson are legit i mean what this has to do with i by well there's a couple things there is the disciplinary action but let's take take the last because as some point mr kushner becomes a way or that judge butler and we don't that's another problem is we don't know what judge butler's opinion of mr cushion areas but less for the sake of argument let's say that judge butler done like mr cushion or when did mr kushner become aware of that now mr kushner points to this lawsuit that the  now the question is should he have brought it earlier i mean certainly there was i mean my argue that he had brought it on earlier sounds to me like way that's all about i'm trying to pin this down do you want to start waiver or not on afraid that argument that should be remanded to a different oh yes ma'am because as i think the difficult correctly found there's not this doesn't meet the standard for us finding under under the supreme court case of mcclure there's a presumption of integrity and honesty in the o j and mr kushner has not presented any evidence to rebut that presumption and mr kuttner has a has tried to change the standard by citing calder you know the reasonable possibility but calder is a new evidence case not dealing with new evidence to the appeals council or to the district that they think the district courts i mean to a o j says to discount the treating physicians to me one after another you go through one hundred at a time and they do not withstand scrutiny am i wrong well yes i think you are but even if let's say you're not let's say you're correct and they ok or less not there's nothing unusual about that but that doesn't indicate bias that doesn't show bias and nothing zaentz to support his bias climb stands up to number one he doesn't have he can't meet the standard what does he have he has this he points to the lawsuit  lawsuits not against mr cushion or it's against the agency and while it may be the fact that it was his underlying complaint will sort out this bias issue since you're not a starting waiver we don't reserved to the commissioner well the question of r f c is reserved to the commissioner yeah but but the things that are said in the answers to those questionnaires are just there these are just medical opinions  think yes they are and they're entitled to do that right yes or absolutely i mean that i think what they all jay was getting at was some of the terminology used in the forms he found to be they talked about miles  function it seems to me has a pretty straightforward common sense meaning well i'm not sure your honor i what does that mean is i mean is that it is an opinion that the person is disabled or unable to work because i'm able to function if that means the person is unable to work or disabled that's also an issue that's reserved to the commissioner but what i'd also point out is and i j found that terminology was that that was one reason that he you explain though let's go to one of the let's start with this this first one that you've brought up how do you explain the fact that the exact same terminology was used in the opinion by one of the doctors who relied on well again i think the doctor in question was a state agency doctor and he was using a form that we actually use so it wasn't the when he used it but it was when the treating physician used it well i think it was here and that seems to be a problem well it yes ma'am i do see the concern so then what is so the second what is your second argument on that they are jay reviewed the evidence of record from these treating physicians and noted that they opinions were inconsistent with other substantial evidence in the treatment records except that he didn't identify what was inconsistent about well he did know that in june of two thousand and ten doctors dard found that the claimant had good orientation intact leg language skills average intellect no psychoses no problem retaining and executing multi layer hundred percent of the time you're not totally depressed or on a manic high i mean that's the nature of the disorder sure but again there has to be there has to be evidence presented you know that substantiate twelve month period but can you pick and choose which pieces you want to rely on i mean there were plenty of notes in the doctor's treatment notes that talked about different problems that  day also noted that many of these psychological problems were remedied with medication so i mean yes it's true there's also the sporadic nature of the treatment if you look at the timeline for the  for the medical you know you have big gaps in treatment from august of two thousand and nine to june of two thousand and ten from  october of two thousand and eleven to december of two thousand and thirteen when there's no treatment so again now don't get me wrong there there was there is a twelve month period of treatment gone so you could i'm not trying to say that but i guess what i'm saying is when they o j stated multiple reasons now and let me let me be clear this is gone through every one of them and it looks to me like not a one holds up well your honor i mean the record is what it is i mean there is i mean there i mean you know i think we've outlined it in our brave the district court outlined it as well and it's asian i mean in all fairness i mean either substantial evidence supports the reasons or it doesn't at this court finds that it doesn't you know yank the comment about the treating physicians but at least they met with them over time and when they did meet with them and again you know that they didn't find disabling limitations in their treatment notes now they did in their opinion but  as i said the district court outlined it we outlined it in our briefs outlined in his decision again this is a simple question whether substantial evidence supports i mean we've outlined what we believe the substantial evidence is if this court disagrees then you know that's that's that's the case i mean you can't just parrot the test and say it is i mean you can't just kind of use the buzz word no no no your honor i don't mean to and i'm sorry i'm giving that impression but i mean the evidence i mean i could you know judge pryor has gone through the evidence and he doesn't agree with me but i i could go you know i could but it's just it's because of just the sort of thing that judge moore just race discounts treating physician opinions because of sporadic meetings windows treating physicians saw the patient several times but then he credits the  hernandez and dr assad's own treatment records to support they are just finding and i don't want to i don't want to impose on the court's patients by going through the medical records that we but they're but they were they were documented in the district court decision they were documented in our brief but if the court is not satisfied with those records then and i mean then we have a disagreement about whether substantial evidence  you know one of the things the a o j stated was that the questionnaires quote don't address the category of understanding and memory your your your opponent says well that's completely an app is it what matters is whether his bipolar disorder this able sam by affecting his mood and affect not his cognition or memory you know you go through this and one by one you find those questionnaires of the treating physicians don't address understanding and memory so what is what your opponent says your opponent says bipolar bipolar disorder affects him hi i'm not inconsistent with bipolar the state agency findings he did talk about the forms and he didn't give a lot of credence to the checkbox forms in this case we've cited case law from this court and from the third circuit the decision as long as substantial evidence is he they are fuming he says things like that because the applicant could participate in normal activities of daily living like walking a dog watching television doing a little housework that that shows that he had better functioning than assad in are now and as indicated that does not follow to me the fact that he could be said in theory activities doesn't tell me at all whether he would have the ability to respond appropriately to coworkers or players the ability to relate to the general public and maintain socially appropriate behavior the ability to behave predictably reliably in an emotionally stab stable manner all the things that you would expect could be a problem for someone with bipolar disorder well your honor he also he could cook clean shop but meant none of the way there was none of those things require th type of cooperative or interactive skills that working with somebody at a job i mean paying bills something you do by yourself you know walking the dog something you do by yourself watching television something you do by yourself how does that how does that i'm sorry well certainly driving an automobile some getting yourself though well i mean you do it out on the street you have to interact with other drivers and well it's not really an interpersonal skills kind of skill is if they're no yes my you're correct i think you're right about that so that's that's kind of the problem right because that the evidence he relies on does not it's not really relevant and doesn't tell us one way or the other whether it's more or less likely that he'll be able to work in an environment with other people and respond to instructions by somebody who's supervising him thanks for that nature well i could also just add that the state agency doctor who reviewed the record it's true did not examine the claimant but did review the medical records  interacted with other people including himself well that's correct stating if the doctors don't write actually that's my point yes ma'am well thank you your honor if there's nothing further tell me yes tell me just yes or would is applying the wrong standard with respect to the the bias issue and this is an opportunity for the court to clarify that and as specifically they've acknowledged in multiple decisions that there is this appearance or a risk of bias in this situation and the district court did that here in this decision ok but it does seem to me that your your adversary is said the commissioner has basically said he's not asserting  probably not not at the not a not in place we deal with that is what you're saying correct correct and i think your honour's that again that's exactly why this needs to be clarified to the district court because that's the standard that they applied so if they're not arguing that i that i that i waived and they're therefore centrally they haven't even contested the fact that there is this risk or an appearance reiterated that that very same thing in fact this court has indicated we don't even have to get to the substantial evidence issues and even if you could bring it up again i mean it's almost seems like it would be sort of law of the case at this point with  haven't already decided yes your honor that's absolutely i'm sorry i'm sorry the appeals council yes that's what i meant the appeals counsel said yes that yes well that that's absolutely correct and just just to be