[00:00:03] Speaker 02: Good morning and welcome to the Ninth Circuit. [00:00:05] Speaker 02: Judge Hawkins and I are happy to be here and we have Judge Wardlaw on video, which I think everybody can see quite well. [00:00:13] Speaker 02: We have several cases submitted on the briefs, but we have quite a few for argument. [00:00:18] Speaker 02: So for those who haven't been here before, we have a handy little clock up there. [00:00:23] Speaker 02: And for the appellant, [00:00:25] Speaker 02: That's your complete time, including your rebuttal time. [00:00:28] Speaker 02: And then magically when it turns red, the clock keeps going, but actually you're supposed to stop. [00:00:34] Speaker 02: So they're similar to a stop sign. [00:00:35] Speaker 02: So just a fair warning on that. [00:00:38] Speaker 02: The first case for argument this morning will be Frazier versus Bisignano. [00:00:45] Speaker 02: And you can correct me because this is, of course, a newer name to us as to how to pronounce that because I know we'll be seeing a lot of those cases. [00:00:53] Speaker 04: I think it's Bisognano. [00:00:54] Speaker 02: It is Bisognano, okay. [00:00:55] Speaker 04: Not Bisognano, my colleague will know. [00:00:57] Speaker 02: Yes. [00:00:59] Speaker 04: I'm Jeffrey Baird from Delert Baird office and we are representing Mr. Lucian Frazier in this disability case. [00:01:10] Speaker 04: This case was decided under SSR 004P, which required whenever there's an apparent conflict between VE testimony and the DOT, it requires a good explanation in some detail, as described by the Lemire decision. [00:01:29] Speaker 04: What we have is an RFC for occasional right overhead reaching. [00:01:36] Speaker 04: But the DOT describes all the occupations the VE identified as requiring either constant or frequent reaching. [00:01:46] Speaker 04: The DOT doesn't distinguish planes, but it would still be up to the VE and the ALJ to explain why there's a difference. [00:01:56] Speaker 04: The explanation that the ALJ solicited was in response to a compound question with a number of different elements, [00:02:04] Speaker 04: And the VE simply said, yes, it's because of my experience and my knowledge in studies and so forth. [00:02:10] Speaker 04: That wasn't in some detail. [00:02:12] Speaker 04: That didn't tell why the reaching was different. [00:02:15] Speaker 04: In other cases, there's been, for example, the reaching might be local differences or industry differences or a different pattern in certain locations. [00:02:27] Speaker 04: But the VE here just gave a broad, over broad statement of he's an expert. [00:02:33] Speaker 04: We know that. [00:02:34] Speaker 04: but it doesn't tell us why the reaching is occasionally overhead on the right. [00:02:40] Speaker 04: So under Lemire, we need a good explanation in some detail, and we did not get it. [00:02:47] Speaker 01: So what do we know about what, this is Judge Wardlock, what do we know about these jobs from the record? [00:02:55] Speaker 01: Electronics worker, what basis do we have from the record to assume that [00:03:01] Speaker 01: an electronics worker would be reaching forward and not reaching upward? [00:03:07] Speaker 01: This is the same question I'm going to ask the other side too, because a cashier, we know what a cash machine looks like and that you go down to get to the cash. [00:03:27] Speaker 01: That's common experience for sure. [00:03:30] Speaker 01: But I've never personally encountered an electronics worker, a small products assembler, or a marker. [00:03:37] Speaker 04: Right. [00:03:38] Speaker 04: Those would be jobs that the VE would have to explain in some detail. [00:03:43] Speaker 04: And the mere fact that my opponent, for example, looked at the DOT descriptions, which are elaborate, or they were described in one of the cases as windy. [00:03:53] Speaker 04: The descriptions are windy. [00:03:54] Speaker 04: But the fact you had to look at it at all means it's not obvious. [00:03:58] Speaker 04: It means it's time for a VE to give [00:04:00] Speaker 04: a good explanation in some detail about a specific limitation. [00:04:05] Speaker 04: That's the way 004P works. [00:04:09] Speaker 04: And it was still applicable. [00:04:10] Speaker 04: It won't be in the future. [00:04:12] Speaker 04: But the new ruling takes effect January 2025. [00:04:16] Speaker 04: And this was all done by the agency way back in 23 and 24. [00:04:20] Speaker 03: Your client is a veteran. [00:04:23] Speaker 03: Right. [00:04:24] Speaker 03: Army and National Guard. [00:04:26] Speaker 03: That's right. [00:04:27] Speaker 03: Was he ever deployed? [00:04:28] Speaker 03: No. [00:04:30] Speaker 03: I note that although PTSD was referred to at the hearing level, it's not raised on appeal. [00:04:39] Speaker 03: Is that correct? [00:04:40] Speaker 04: I haven't raised it. [00:04:42] Speaker 04: I don't think the mental aspects were... I had to limit the precise issues, and I didn't have good evidence on the PTSD. [00:04:52] Speaker 04: Let's put it this way. [00:04:53] Speaker 04: I couldn't overcome substantial evidence. [00:04:56] Speaker 04: Right, so that was why I left that one out. [00:04:59] Speaker 04: I also left out the reaching limitations by the two examiners, but they weren't done in the ordinary functional assessment. [00:05:08] Speaker 04: They didn't say reach occasionally or reach what they were done poor, fair, whatever. [00:05:13] Speaker 04: So I would say I was fine with using the ALJ's own RFC. [00:05:16] Speaker 04: He said overhead reaching on the right is occasional and that's the apparent conflict and I'll go with that. [00:05:27] Speaker 04: The other issue was standing. [00:05:29] Speaker 04: Now, my client can stand, but how long? [00:05:35] Speaker 04: What about prolonged standing? [00:05:37] Speaker 04: The two examiners said four hours of standing total with breaks as needed, basically. [00:05:44] Speaker 04: And the VE said, was responding only to six hours of standing. [00:05:51] Speaker 04: The ALJ rejected the four-hour standing not based on the findings these examiners themselves made, such as [00:06:02] Speaker 04: plantar fasciitis and numbness in the right foot at 70 degrees of straight leg raising, things like that. [00:06:11] Speaker 04: Okay, those findings are good for your limitations, but the record as a whole doesn't support you. [00:06:15] Speaker 04: The record as a whole is inconsistent. [00:06:17] Speaker 04: That's the ALJ's finding. [00:06:19] Speaker 04: But what the ALJ did is keep citing things like a normal gait in a routine exam, but that wouldn't explain prolonged standing. [00:06:28] Speaker 04: that wouldn't explain why it's troubling to go six hours, but it's possible to go four. [00:06:33] Speaker 02: Well, I just want to reconcile these, which is, I think, what you're trying to do. [00:06:38] Speaker 02: Yeah. [00:06:39] Speaker 02: We have, what, three doctors who say he could stand or walk for six hours? [00:06:45] Speaker 02: Is that right? [00:06:46] Speaker 04: Well, they didn't examine him, but that's true. [00:06:49] Speaker 02: I mean, I'm just saying that's the testimony that the ALJ has presented. [00:06:53] Speaker 04: The ALJ did have that. [00:06:54] Speaker 02: Right. [00:06:55] Speaker 02: And then they also [00:06:59] Speaker 02: The ALJ ultimately concluded two to four hours, correct? [00:07:04] Speaker 04: No, the ALJ ultimately concluded six hours. [00:07:06] Speaker 02: Six hours, which you have those three opinions. [00:07:10] Speaker 02: And the question we're left with then is whether that's sufficient in this record, substantial evidence, given that we have the three doctors with the six hours. [00:07:21] Speaker 04: Well, what's interesting is this is a really narrow period at issue. [00:07:26] Speaker 04: It is 18 months, I guess. [00:07:28] Speaker 04: It runs from [00:07:29] Speaker 04: Well, I have it written somewhere if it's only 18 months and both of the examiners are Right at the edges of that so they they define that period the other doctors didn't That was that was my impression, so it's because it's a narrow period at issue the Examiners give better evidence because they are in that period at issue or yeah Really there within it, but they also define the boundaries of it [00:08:00] Speaker 04: So I will save time for rebuttal unless you have questions, Your Honor. [00:08:05] Speaker 04: Thank you. [00:08:18] Speaker 00: Good morning, Your Honors. [00:08:18] Speaker 00: Joseph Langhammer on behalf of the Commissioner. [00:08:21] Speaker 00: Judge Wardlaw, I would like to start with the question that you asked about SSR 004P and the three occupations that the vocational expert identified and that the LGA relied upon. [00:08:34] Speaker 00: I believe you asked, what is it in these DOT positions that makes it obvious or apparent that a claimant would have to reach overhead? [00:08:47] Speaker 01: I think the case Gutierrez talks about [00:08:50] Speaker 01: common sense, common experience. [00:08:54] Speaker 01: I don't see it, especially when you start looking at, for example, the DOT, electronics worker, and among the things it says is, loads and unloads parts from ovens, baskets, pallets, and racks. [00:09:09] Speaker 01: Racks seem to be overhead reaching. [00:09:13] Speaker 01: And then there's a couple, you know, [00:09:15] Speaker 01: Cleans and deglasses parts using cleaning devices, solutions, abrasives, trims, flash from molded or cast. [00:09:22] Speaker 01: I mean, how do we, I mean, even, so common experience is one point. [00:09:28] Speaker 01: And then when you start looking at the DOT description, it doesn't eliminate overhead reaching. [00:09:37] Speaker 00: Right. [00:09:38] Speaker 00: And I think that that's, [00:09:39] Speaker 00: that's the point that I want to make, is that Gutierrez certainly did say common sense was one thing that this court could rely on, but the more important point of Gutierrez is there actually has to be an obvious or apparent conflict between the testimony and the DOT description, and here I think what we're all sort of [00:09:58] Speaker 00: sort of acknowledging is that there just is no specific indication in the DOT that a claimant would have to reach overhead. [00:10:08] Speaker 00: And that's what Gutierrez and SSR 004P really come down to is, is there an apparent conflict that the ALJ has to explore? [00:10:17] Speaker 00: Now, I think the more fundamental point on 004P is that the ALJ did actually ask about it at the hearing. [00:10:25] Speaker 00: If we turn to page [00:10:29] Speaker 00: So regardless of whether or not this court decides that there's an apparent conflict or not, the ALJ went beyond and actually asked the VE. [00:10:36] Speaker 00: If we look at 72 of the record, the ALJ said, is there a conflict? [00:10:41] Speaker 00: The VE said no. [00:10:42] Speaker 00: And then what the ALJ did was say, well, what about [00:10:46] Speaker 00: instances where maybe the hypothetical contains more detail than the DOT, like, quote unquote, the direction of reaching. [00:10:53] Speaker 00: That was one of the things that the ALJ asked the vocational expert. [00:10:57] Speaker 00: And then the vocational expert said that he based his testimony on 44 years of experience as a vocational counselor. [00:11:03] Speaker 00: We actually have his CV in the record at pages 397 to 98. [00:11:09] Speaker 00: And he then went on and said, I've conducted thousands of job sites analyses. [00:11:13] Speaker 00: I've visited sites. [00:11:15] Speaker 00: I've interviewed employees. [00:11:17] Speaker 00: Now my colleague on the other side says, this isn't enough. [00:11:21] Speaker 00: But 004P actually says that an ALJ can rely on a vocational expert's experience. [00:11:28] Speaker 00: Gutierrez mentions the exact same point. [00:11:31] Speaker 00: Terry is a really strong opinion from this court that says, [00:11:36] Speaker 00: In a case where the claimant does not dispute the vocational expert's expertise, and the vocational expert references that expertise at the hearing, that is a sufficient basis. [00:11:49] Speaker 00: And we know from cases like Ford and Bayless that we start from the baseline that vocational expert testimony is reliable. [00:11:57] Speaker 00: So. [00:11:58] Speaker 01: And he did say that. [00:12:01] Speaker 01: I mean, I'm looking right at page 72 right now. [00:12:05] Speaker 01: But he didn't explain what about this experience informed his opinion as to these three particular jobs. [00:12:16] Speaker 00: I think that the vocational experts testimony about his experience is directly related to the testimony he provided about those three occupations, because if we look on the prior page, this is where the ALJ is asking about the hypothetical that includes the overhead reaching. [00:12:33] Speaker 00: So the VE heard that testimony, and then [00:12:37] Speaker 00: looked up and offered three different occupations that comported with those limitations. [00:12:44] Speaker 00: And then that's when the ALJ says, well, what about these limitations that the DOT might not cover? [00:12:50] Speaker 00: And that's when the vocational expert says, well, I've been to multiple job sites. [00:12:54] Speaker 00: I've conducted studies. [00:12:56] Speaker 00: And that is sufficient. [00:12:57] Speaker 00: We know that is sufficient under 004P. [00:13:00] Speaker 00: We know it's sufficient under Terry Gutierrez cases that say when an ALJ [00:13:06] Speaker 00: asks about 004P, asks the question about any potential conflicts, a vocational expert may rely on his experience to justify his testimony. [00:13:16] Speaker 00: And it's interesting because the claimant who was represented at the hearing never raised any questions about this. [00:13:24] Speaker 00: I know we've got arguments on the other side that say, well, it was a compound question, and we don't really know if [00:13:30] Speaker 00: The vocational expert was talking about experience with these jobs and it's all confusing. [00:13:35] Speaker 00: But at the hearing, the attorney never asked a follow up question about that. [00:13:42] Speaker 00: Even in post hearing submissions where the claimant did raise some issues with some of the vocational experts testimony, different issues. [00:13:49] Speaker 00: completely silent about this particular exchange. [00:13:52] Speaker 00: So it's not until federal court that we now have this after the fact argument that while everybody was confused about what happened, I think all of this underscores that there was no confusion at the hearing, that the ALJ asked the right question and the vocational expert provided sufficient testimony. [00:14:11] Speaker 00: I would like to turn, if I could, to some of [00:14:17] Speaker 00: my colleague's arguments about the standing and walking limitations. [00:14:21] Speaker 00: Judge McEwen, you asked about the state agency doctors who looked at these records and said, this claimant can stand or walk for six hours, which is what the ALJ found to be persuasive and what the ALJ ultimately adopted. [00:14:37] Speaker 00: That is substantial evidence because we know from cases like Tonopetian, which is a case under the prior regulations, but still what this court said in Tonopetian [00:14:47] Speaker 00: is that when we have non-examining doctors who have looked at records and when those doctors' opinions are consistent with independent evidence, that can constitute substantial evidence. [00:15:00] Speaker 00: A more recent case is Stiffler. [00:15:02] Speaker 00: In Stiffler, it's a very similar fact pattern where we had some doctors saying that the claimant had certain limitations, which conflicted with what the state agency doctors found. [00:15:13] Speaker 00: And the ALJ went with the state agency doctors in this court [00:15:16] Speaker 00: approved of those factual findings and I think it's important to note what [00:15:23] Speaker 00: these doctors actually said about the physician assistant's opinions. [00:15:28] Speaker 00: So Dr. Staley, who looked at Frazier's records, said that Miner's report was a gross overestimate of limitations. [00:15:37] Speaker 00: That's on CAR 150. [00:15:40] Speaker 00: Dr. Stewart said that Mr. Gonzalez's report was not supported by the totality of the evidence. [00:15:47] Speaker 00: That's on [00:15:47] Speaker 00: page 179. [00:15:49] Speaker 00: So I'm a little confused by my opponent's argument that these three doctors' opinions are somehow not related to the timeframe at issue. [00:15:57] Speaker 00: These doctors actually looked at the two opinions at issue in this appeal and were not persuaded by it. [00:16:04] Speaker 00: And then the ALJ has all of these opinions. [00:16:08] Speaker 00: We've got the three opinions on the one side from the doctors. [00:16:11] Speaker 00: We've got the two opinions on the other side from the physician assistants, and the ALJ is charged under the regulations with determining which opinion is more persuasive. [00:16:21] Speaker 00: And how does the ALJ do that? [00:16:22] Speaker 00: The ALJ looks at supportability, that's one factor, and the ALJ looks at consistency as the other factor. [00:16:28] Speaker 00: And we see the ALJ engaging in that analysis on CARS 28 through 30, where the ALJ is balancing these factors and reaching [00:16:40] Speaker 00: factual findings to resolve the conflicts. [00:16:44] Speaker 00: So at the end of the day, this really is just a dispute over the ALJ's resolution of conflicting facts. [00:16:52] Speaker 00: The ALJ gave good reasons for going with the three doctors' opinions about the standing and walking limitations versus the physician assistant's opinions on that issue. [00:17:02] Speaker 00: And I see I have about a minute left. [00:17:05] Speaker 00: If the court has any further questions, I'm happy to answer them. [00:17:08] Speaker 00: If not, I can just request that this court affirm the ALJ decision because substantial evidence supports it. [00:17:15] Speaker 02: Thank you. [00:17:15] Speaker 00: Thank you. [00:17:22] Speaker 04: Okay. [00:17:22] Speaker 04: 004P puts the burden of production of evidence on the VE and ALJ. [00:17:30] Speaker 04: That means if my prior attorneys didn't ask good questions, [00:17:35] Speaker 04: The burden is still on the ALJ to produce the evidence that resolves the apparent conflict. [00:17:42] Speaker 04: Under the new ruling, 24-3P, that's going to change the burdens on the plaintiff to do a good cross. [00:17:52] Speaker 04: Right now, in this case, it wasn't. [00:17:54] Speaker 04: The ALJ had to do that. [00:17:56] Speaker 04: The ALJ had the full burden of production at step five. [00:17:59] Speaker 04: So any argument to the contrary is just, there you go. [00:18:05] Speaker 04: Burdens on the ALJ didn't meet that burden. [00:18:08] Speaker 04: And again, my colleague points out the great expertise and knowledge of this VE. [00:18:14] Speaker 04: For goodness sakes, of course, he's very good. [00:18:16] Speaker 04: In fact, I even like it if I draw him when I'm doing a hearing. [00:18:20] Speaker 04: But he doesn't give a detailed answer. [00:18:23] Speaker 04: He doesn't give a specific answer. [00:18:25] Speaker 04: I know you've all been scholars and written exams or graded exams. [00:18:31] Speaker 04: A precise answer is better than a general one. [00:18:34] Speaker 04: A specific answer gives information you can work with. [00:18:37] Speaker 04: And it didn't have to be a lot here. [00:18:39] Speaker 04: He just had to explain why an electronics worker reaches forward but not up. [00:18:45] Speaker 04: But he didn't. [00:18:47] Speaker 04: He didn't say it's different locally. [00:18:48] Speaker 04: It's different based on the era of the industry. [00:18:53] Speaker 04: Nothing. [00:18:54] Speaker 04: Just in general, in answer to a series of limitations, he said, I am an expert. [00:18:59] Speaker 04: I have 40 years of experience, et cetera. [00:19:03] Speaker 03: One last point on that was... So you would have us send it back to the district court and from there back to the agency to resolve this? [00:19:14] Speaker 04: I would urge the court to think textually, not purposefully. [00:19:18] Speaker 04: But if it does go back, any number of things could happen. [00:19:22] Speaker 04: I still could get my client paid. [00:19:25] Speaker 04: The 004P does require that, I think. [00:19:28] Speaker 04: It would require the remand for further proceedings. [00:19:31] Speaker 04: But we also have the findings of the examiners. [00:19:35] Speaker 04: And again, my opponent says the reviewers said no good. [00:19:42] Speaker 04: But if it was on remand, all of those issues would be revisited, I take it. [00:19:48] Speaker 04: And there might be more evidence. [00:19:50] Speaker 04: And he's older. [00:19:52] Speaker 04: And he's a decaying honorable veteran, but sort of in decline. [00:19:58] Speaker 04: So thank you very much. [00:19:59] Speaker 02: Thank you. [00:20:00] Speaker 02: Thank both counsel for argument in this case. [00:20:03] Speaker 02: The case is submitted.