good morning your honor is my name is ian salmon some of caring for the opponent there is one major factual issue that needs to be first and foremost considered in this case and that is that the v a decisions there were three of them one that gave him ten percent when they gave him sixty percent and the people that gave him one hundred percent disability have not been made part of the record that any explanation as to why they were not include because it's clear that the ale days have them before him and and looked at them i have none and we have requested we brought the issues up before both a l j c and under the circumstances like what i submitted the decisions personally what practical consequences does that have here given that the clear from the record the field day considered to be a decision to reject well for one thing because they're not part of the record since there were three l j decisions and there's no exhibit to refer to we do not know the court does not know which of those decisions the a l j is that is making a determination on if if  indicates that the decision by the v a is not substantiated sufficiently however by the record but that is not the case under the sixty percent decision the hundred percent decision was more conclusory so which one did he look at and why didn't he put it in as an exhibit and as it was before him it had been submitted to be used by him and he didn't know it doesn't give the court a chance to take a look at those on the record and see if it is proper is the problem here that it was it's not in our administrative records so we don't have a chance to look at it or is the problem that it wasn't before the appeals council it wasn't before the district therefore it's possible that counsel took no took no action here which meant that after a certain period the ale days decision became the decision of the commissioner do we know whether the appeals council actually looked at any paper in this case or whether just simply let it go no because the appeals council's decision was that we're not there isn't sufficient evidence to overturn and therefore we're not going to do anything and we know do know that those v a decisions were not as part of the exhibit list and not part of the record that the that if peace council looked at because if they had been then when they came up to the district court they would have been part of the administrat both of those administrations have similar methods of determining disability those her prior decisions by the v a must be looked decision is whether that conclusion is supported by this incisions themselves should be reviewable by the district court and as you pointed out by the appeals counsel prior to that and if i were not part of the but they're not part of the official record in other words like to have for the district or comment on them yes the district court said that and made a conclusion that that under the circumstances there would have been no way that the that those decisions could have changed the  they were but even though they were that they were omitted from the records that they were not material that's well there were material but they were not it was harmless error is what is in essence what their point was and my my contention is that that's not the case they were not only material but they were not harmless error and they did not follow mccarthy the weight given under the circumstances needs to be connected with the decisions to the medical evidence and then the judge you mean that the the the the commissioner is responsible for getting the medical evidence behind s to if you're going to get rid of it and it's already vince of it you need to why is that commissioner's responsibility to go through another agency when it's not it will be bound by them not your responsibility well it is and we did and the weight and it should really get really great weight very less that is unless it is not supported by medical evidence and the medical evidence that was submitted and was listed in the exhibit list was before the judge medium weight or a little weight to that decision i give great weight to the sixty percent decision and and goes forward but he didn't do it and there's no way a reviewing court can see if in fact that was done properly or improperly unless the decisions are in front of the court as part of the evidence and we've got about one minute left if you  two thousand and one the a disability rating the district court properly found that the evidence submitted by plaintiffs was not new but regardless of whether it was new or not looking very closely which was the october two thousand and one disability rating which found him sixty percent disabled so when you look under the motion for summary judgment as to whether this required every man to review that additional evidence we have to look to see whether it w addressed with clear and convincing reasons to find that plaintiff was not credible again you cannot establish disability in the social security context furthermore of the standards between the v a and the v a standards for finding disability and th well again that's the l j look at that one hundred percent unemployed ability and provided several reasons for saying that there were specific persuasive valid reasons for not giving it a great weight that he acknowledged she gave it in that way as you think i ask out of her counsel does that mean then that they were not in the record before the appeals counsel well that's something else and i'd like to clarify what happened in this process is that plan to file his application for social security disability insurance benefits in march two thousand and two he went through that process there was an l j initial a l j decision in that case and that happened in march two thousand and three at that  because of that at that point there were some flaws in the case and the commissioner decided to take back that case so we attempted to do a voluntary issues that he wished with the l j so then it went back to the commissioner into the administrative process and at that point there was another in ministry of hearing on june eighth two thousand and four at that point the  did they have the b a s decision they only had one they only had one but they did have the underlying medical evidence yes ok yes so if you look at the october two thousand and one rating decision that evidence that decision was based largely upon plaintiff's pain which the l g properly evidence to support plaintiff's claims the b but despite all of that still found that plaintiff at that point for his cervical injuries was sixty percent disabled the a l j and then when you look at the unemployed military decision the a l j or the v a ratings decision the plaintiff has fallen application saying i'm unable to work because of my impairments and the a looked at everything said that there residual functional capacity to do some type of work here we found that during that strict time period between november fifteenth one thousand nine hundred five through his date last insurer of december thirty first two thousand the thing to do was able to to perform his prior light work as a warehouse manager during this time period the v a does not look at it the same way if you can't get a job you can be unemployable social security  few points your are one of them is that subjective pain is is a valid method of determining disability if there is an underlying medical cause and there has been proven in this record that there is an underlying medical cause for cervical degeneration so that would those two things are similar with between the v a and so security administration second thing is that there are other happen opposing counsel assent you can't bring those up because you never raise them at the lower court my contention is that the fact that it was part of the rule case and rule of mandate when i came back up it did not need to be written specifically