[00:00:01] Speaker 03:
Good morning.

[00:00:02] Speaker 03:
Good morning, Your Honors, opposing counsel.

[00:00:04] Speaker 03:
May it please the court?

[00:00:06] Speaker 00:
This case concerns a finding at step... Can you tell us your appearance for the record, please?

[00:00:11] Speaker 03:
Yes, Your Honor, Alison Young for the appellant, Danielle Pelley.

[00:00:15] Speaker 03:
Thank you.

[00:00:16] Speaker 03:
This case concerns a finding that jobs exist in significant numbers in the national economy that Ms.

[00:00:21] Speaker 03:
Pelley can perform.

[00:00:22] Speaker 03:
Specifically, this is about the ALJ's discussion of rebuttal evidence that was submitted to the vocational testimony at step five.

[00:00:31] Speaker 03:
There are three occupations that were at issue in this case, those being eyeglass assembler, jewelry preparer, and fishing equipment assembler.

[00:00:40] Speaker 03:
The vocational expert testified to a frankly convoluted method for deriving numbers himself.

[00:00:47] Speaker 03:
He stated that he uses a business directory to determine the number of businesses for that industry and then would, and I'm quoting here, try to draw some assumptions from that to a number of jobs.

[00:00:57] Speaker 04:
Council, can you explain to me how the rebuttal evidence in Richmond is different than the rebuttal evidence you provided in this case?

[00:01:06] Speaker 03:
Well, the rebuttal evidence in Wishman, I don't know whether it was scrambled by some electronic process or whether it was illegible in the original, but it had headers that didn't line up with the numbers.

[00:01:17] Speaker 03:
It was just a mess, frankly.

[00:01:19] Speaker 03:
These reports are perfectly legible.

[00:01:22] Speaker 03:
They include a paragraph from SkillTran explaining their methodology, and they indicate both the overall industry that they are estimating from and the percentages that they use to come up with the final number.

[00:01:33] Speaker 04:
And skill trend was the same process that the government used.

[00:01:39] Speaker 03:
Well, for two of the three jobs, the expert said that he relied on the skill trend numbers.

[00:01:44] Speaker 03:
And I would assume that since Job Browser Pro is the flagship product of SkillTran that they would be the same numbers.

[00:01:51] Speaker 03:
And that's a big part of our problem here in that the vocational expert for those two jobs indicated 24,000 some jobs for the jewelry preparer, 14,000 and change for the fishing equipment assembler.

[00:02:05] Speaker 03:
Job Browser Pro indicated no positions for jewelry preparer and only 19 for the fishing assembler.

[00:02:10] Speaker 03:
So obviously those numbers are vastly different.

[00:02:13] Speaker 04:
Thank you.

[00:02:14] Speaker 00:
So if we agree with you on that point, then it just would go back to the ALJ to state, to look at what you submitted and what the vocational expert did at that particular time, and just give reasons one way or the other, right?

[00:02:37] Speaker 03:
I think fundamentally, yes.

[00:02:49] Speaker 03:
said that the vocational expert's testimony was based on his consideration of specific hypotheticals posed at the hearing in conjunction with his professional experience and knowledge, including 30 years as vocational expert rehabilitation counselor.

[00:03:06] Speaker 03:
So he was relying on the expert because he's an expert.

[00:03:08] Speaker 01:
But inadequacy isn't essentially sufficient to meet credit as true, is it?

[00:03:17] Speaker 03:
Well, that's a good question, Your Honor.

[00:03:20] Speaker 03:
But I don't think we have a situation where we can remand from because it's not clear from the record whether these are the only jobs that exist that might fit that hypothetical.

[00:03:31] Speaker 03:
If the vocational expert had testified that these are the only jobs, and if we knew for a fact that there are only 50 jobs total for these three, I think that would be enough to order immediate payment.

[00:03:41] Speaker 03:
Because we don't know if there are other jobs that meet, you have to remand for further.

[00:03:48] Speaker 00:
So the government argues that your job's evidence is not significant or probative, I think, in part because you did not duplicate the message used by the vocational expert Arnaz.

[00:04:01] Speaker 00:
Was that the expert's name, I think?

[00:04:03] Speaker 00:
Does our case law require you to duplicate vocational experts' methods, and if so, did you duplicate Mr. Arnaz's methods?

[00:04:12] Speaker 03:
There are two parts to that.

[00:04:13] Speaker 03:
The first being, do we have to replicate the vocational experts methods?

[00:04:17] Speaker 03:
I would say that we do not.

[00:04:19] Speaker 03:
The standard is that the evidence must be significant and probative.

[00:04:22] Speaker 03:
It is clear that replicating vocational experts methods is enough to meet that standard.

[00:04:27] Speaker 03:
That doesn't mean that that is the standard.

[00:04:30] Speaker 03:
And we believe that, given that two of the three jobs of vocational expert did rely on skill trans numbers by his own testimony, so at least for those, I think we have, it's because we're also relying on skill trans numbers.

[00:04:42] Speaker 01:
Could we affirm on the eyeglass assembler figures alone, since they are?

[00:04:47] Speaker 03:
I don't believe so, because we've rebutted that in a different way.

[00:04:51] Speaker 03:
The vocational expert testified that there were 39,000 positions for this eyeglass assembler.

[00:05:01] Speaker 03:
According to census data, there's less than 45,000 people in that hybrid history.

[00:05:03] Speaker 03:
It's just not possible that there are 15,000 more people doing that one job than there are in the entire

[00:05:09] Speaker 00:
So all the numbers, when you cross-examined the expert, you brought up all of those things, and then you just submitted the actual documents.

[00:05:20] Speaker 03:
I didn't argue this case before the hearing, so I'm going by what the record tells me.

[00:05:24] Speaker 03:
But at least the issue of the source of the job numbers was raised at the hearing, and then the rebuttal evidence was submitted.

[00:05:32] Speaker 00:
Well, and that's kind of the common way, because you don't necessarily take depositions of the expert.

[00:05:37] Speaker 00:
The expert gets up there, then you cross on that.

[00:05:40] Speaker 00:
And I think the government also, you didn't submit, or when I say you, I realize what you're saying is you weren't the person.

[00:06:00] Speaker 00:
Yeah, but the expert, your submissions are not by an expert.

[00:06:06] Speaker 00:
It's not an expert opinion or it's not something like that.

[00:06:09] Speaker 00:
It's just documents that are pulled off a database that were cross-examined the expert at the time, right?

[00:06:18] Speaker 00:
That's correct.

[00:06:20] Speaker 04:
I guess, and to be clear, though, what you're asking us to do and what you're identifying as the issue is that you provided this rebuttal evidence

[00:06:30] Speaker 04:
that you've claimed that is significant and probative, and the ALJ did nothing with it, correct?

[00:06:37] Speaker 03:
Essentially, yes.

[00:06:38] Speaker 03:
The judge didn't explain how the vocational experts' purported expertise can reduce this number from... Sorry, even the reduced numbers can increase the numbers, but the law data from SkillTran says that there's this vanishingly small number of jobs.

[00:06:57] Speaker 03:
to explain how his 30 years of experience can inflate that number by a factor, or in the case of eyeglass assembler, inflate that number to one and a half total number in the industry.

[00:07:09] Speaker 00:
But the government argues that Kilpatrick and Wishman require that any alternative evidence be produced by someone with expertise.

[00:07:17] Speaker 00:
I'm assuming you don't agree with the reading of those cases?

[00:07:23] Speaker 03:
I'm sorry, I didn't mean to interrupt you.

[00:07:24] Speaker 03:
I don't agree that there's an outright requirement that the numbers be produced by someone with expertise.

[00:07:31] Speaker 03:
Job browser pro is relied on by vocational experts widely in social security cases, as the court noted in white.

[00:07:38] Speaker 03:
So while we ourselves are simply relying on job browser pro, job browser pro numbers are produced by experts.

[00:07:46] Speaker 00:
So, but I'm understanding your position, ultimately, if we agree with you that the ALJ, erred by not discussing those, that what we're remanding it for is for the ALJ to reevaluate the alternative job numbers against the expert.

[00:08:03] Speaker 03:
Either that or to obtain new vocational testimony to see if there are other jobs available, yes.

[00:08:08] Speaker 00:
So are you asking for a redo?

[00:08:13] Speaker 03:
We're asking for a remand for step five to determine whether, in fact, there are jobs that exist in significant numbers within the residual functional capacity.

[00:08:24] Speaker 03:
That could be done either by explaining where these numbers come from and why they're credible or by determining that there are other numbers out there.

[00:08:32] Speaker 00:
So do you want to reserve any time for rebuttal?

[00:08:34] Speaker 03:
I would like to reserve what I have left.

[00:08:36] Speaker 00:
OK, thank you.

[00:08:36] Speaker 03:
Thank you.

[00:08:47] Speaker 00:
Good morning.

[00:08:48] Speaker 02:
Good morning, Your Honors.

[00:08:50] Speaker 02:
Good morning, Council.

[00:08:51] Speaker 02:
If it may please the Court, excuse me.

[00:08:54] Speaker 02:
I am Edmund Darcher, and I represent the defendant, the Commissioner of Social Security Administration.

[00:09:00] Speaker 02:
In this case, it turns on whether the administrative law judge reasonably addressed Pally's objection to the job numbers.

[00:09:09] Speaker 02:
and for the step five decision.

[00:09:12] Speaker 00:
Right.

[00:09:13] Speaker 02:
So we've got sort of that single issue.

[00:09:15] Speaker 00:
Yes.

[00:09:15] Speaker 00:
And your reading of Kilpatrick seems to be different than your friend on the other side.

[00:09:22] Speaker 02:
Yes.

[00:09:23] Speaker 02:
Well, in Kilpatrick versus Kijikaze, this court found that in ALJ, he'd only explain why he is discounting a claimant's report of evidence for step five job numbers.

[00:09:34] Speaker 02:
In this case, the ALJ explained that he found

[00:09:37] Speaker 02:
those alternative job numbers to be unpersuasive compared to the vocational experts.

[00:09:41] Speaker 01:
But if there's no question that the numbers are vastly different than the vocational experts said, how can the ALJ's statement to that effect be of any value?

[00:09:51] Speaker 02:
Well, because he relied on the vocational experts' experience, expertise, and knowledge where, and like in Kilpatrick and Wishman,

[00:09:59] Speaker 02:
that was also dealt with, wide discrepancies in the alleged job numbers.

[00:10:02] Speaker 04:
But there's a requirement to reconcile, though.

[00:10:05] Speaker 04:
There's a requirement that the ALJ must reconcile that discrepancy.

[00:10:09] Speaker 04:
What in the record shows us that that's what happened here?

[00:10:12] Speaker 02:
Well, the ALJ, I believe, recognized the conflict in the job numbers posed by.

[00:10:18] Speaker 04:
Where specifically?

[00:10:19] Speaker 04:
If you have, at some point, can give me that site, because I'm trying to understand where the reconciliation happened.

[00:10:27] Speaker 02:
Certainly.

[00:10:28] Speaker 02:
The ALJ's reasoning was sparse, but it was relying on the vocational experts' experience, knowledge, expertise, to basically resolve the conflict posed by the job numbers.

[00:10:44] Speaker 00:
But OK, so the eyeglass assembler, the difference between the respective job numbers is 39,425 versus 27.

[00:10:52] Speaker 00:
For the fishing equipment assembler,

[00:10:54] Speaker 00:
the difference between the respective job numbers is 14,700 versus 19.

[00:11:00] Speaker 00:
So where, and for the jewelry prepare, it's 24,700 versus zero.

[00:11:10] Speaker 00:
So can you explain why the difference in those numbers is not significant?

[00:11:17] Speaker 00:
And I think Judge Mendoza is asking you, say where, where can we specifically see that?

[00:11:23] Speaker 02:
We can see that they aren't significant or probative enough for the LJ to have to give more discussion because of how Pally did not replicate the vocational experts methodology, nor provide any professional experience for the assertions that they made with that rebuttal evidence.

[00:11:38] Speaker 02:
Here the vocational expert testified.

[00:11:40] Speaker 04:
It gives the same systems.

[00:11:44] Speaker 02:
I don't believe that that's established, Your Honor.

[00:11:46] Speaker 02:
The vocational expert here testified that the job numbers for two of the jobs, for two of the occupations rather,

[00:11:52] Speaker 02:
Those of jewelry preparer and fishing equipment assembler were from Skill-Tran, which offers a variety of vocational services and software.

[00:12:02] Speaker 02:
The vocational expert did not testify that he was duplicating numbers from Job Browser Pro, which is what Pally produces to try to displace the ALJ's finding of persuasive, reliable vocational testimony.

[00:12:15] Speaker 02:
And in Wishman, we saw that Klayman providing Job Browser Pro numbers

[00:12:21] Speaker 02:
is not going to be significant or probative, typically, unless those accompanied by some kind of explanation about how those job numbers were produced, what kind of professional experience was used, and what the version was that produced those.

[00:12:32] Speaker 04:
And again, I'm sorry.

[00:12:33] Speaker 04:
I thought that they had used SkillTran, which was testified to by the VE.

[00:12:40] Speaker 02:
Yep.

[00:12:40] Speaker 02:
And SkillTran offers many different types of ways of devising, not just job browser pro.

[00:12:45] Speaker 02:
And I believe that Pali's

[00:12:48] Speaker 02:
briefing glosses over how, I believe it might be at page 16 of the opening brief, how it doesn't cover web-based services.

[00:12:57] Speaker 02:
And this is just to point out how this is an untrained, unrefined data.

[00:13:01] Speaker 04:
But did the ALJ point that out in that way that you've just indicated?

[00:13:05] Speaker 02:
The ALJ pointed out that the vocational expert had experience and professional knowledge to back up there.

[00:13:11] Speaker 02:
testimony, whereas Pali doesn't.

[00:13:14] Speaker 02:
So to say also that those, and in Wishman, the vocational expert also did testify very clearly that they were using JotBrowser Pro.

[00:13:24] Speaker 02:
And even then, that vocational expert's testimony wasn't displaced because of how the data was unrefined and instituted by somebody who didn't have any apparent expert professional experience to do so.

[00:13:37] Speaker 04:
And you're arguing that our case law says that.

[00:13:41] Speaker 04:
I believe our case law does say that.

[00:13:43] Speaker 04:
And you're relying on which case specifically?

[00:13:46] Speaker 02:
Wishman and Kilpatrick.

[00:13:47] Speaker 02:
And also, I mean, I think that the through line from those cases comes from B-Stick versus Berry Hill, too, where we cannot create categorical rules about what kind of evidence would displace an ALJ's reliance on vocational testimony at step five, because we have to look at the very case-by-case basis and the details

[00:14:06] Speaker 02:
And the details that matter are the things about methodology and professional support that a claimant presents with a rebuttal evidence.

[00:14:13] Speaker 00:
Well, but under White, the ALJ is required to address discrepancies and resolve the inconsistency between the job number estimates.

[00:14:25] Speaker 00:
And where in the ALJ's decision did the ALJ resolve the inconsistency between those job numbers?

[00:14:35] Speaker 02:
I think it's in that same paragraph where they rely on the expert's testimony and rely on the expert's expertise.

[00:14:41] Speaker 00:
So you can just say, because you're an expert and because these other numbers are not from an expert, that's the end of the inquiry?

[00:14:50] Speaker 00:
Do we have to?

[00:14:52] Speaker 00:
That's what it seems like you're asking us to do.

[00:14:55] Speaker 02:
I'm asking to do so in this case because on the case-by-case details, and that's what we see with Besick and Kilpatrick and Wishman,

[00:15:03] Speaker 02:
that it's these details about the case of the vocational expert testimony and the whole experts.

[00:15:10] Speaker 04:
Counsel, the first sentence in Wishman says that there has to be a reconciliation of those inconsistencies.

[00:15:15] Speaker 04:
So I just I don't see that in the record that the IJ did that.

[00:15:21] Speaker 02:
I will submit that the ALJ could have given more explanation.

[00:15:27] Speaker 02:
and just saying that we're relying on the expertise might not be sufficient in every case, but I believe it is sufficient in this case because of how this case resembles Wishman and Kilpatrick in the ways that the ALJ, the methodology.

[00:15:41] Speaker 00:
And I want to point out, too, that- Do you have a better argument if the numbers were closer?

[00:15:46] Speaker 00:
I mean, here they're very disparate, down to zero, you know, compared to, you know, 14,000 or what.

[00:15:56] Speaker 00:
You know, I'm always sort of amazed looking at the things that people can do.

[00:15:59] Speaker 00:
It's kind of an arcane way that we look at things when you hear, oh, well, you can be a jewelry preparer.

[00:16:05] Speaker 00:
You can be an eyeglass assembler.

[00:16:07] Speaker 00:
You can do this.

[00:16:09] Speaker 00:
But that's the way we do it.

[00:16:11] Speaker 02:
If I may continue, I believe that the vocational expert gave reliable testimony about those jobs and how frequent they are prevalent in the national economy.

[00:16:20] Speaker 00:
Well, OK, let's say the vocational expert gave reliable testimony as to

[00:16:27] Speaker 00:
his numbers.

[00:16:29] Speaker 00:
But the case law seems to say you have to address a wide discrepancy.

[00:16:36] Speaker 00:
Where does that happen in the record?

[00:16:38] Speaker 02:
The ALJ doesn't say or describe exactly how big the discrepancy is.

[00:16:42] Speaker 02:
The ALJ says that he is relying on the vocational expert's testimony based on their experience and knowledge expertise.

[00:16:49] Speaker 02:
And that includes all of their testimony about the methodology and the way

[00:16:57] Speaker 02:
they were able to be subjected to cross examination.

[00:17:00] Speaker 00:
The evidence that they submitted, did it come from the usual type of sources of numbers out there?

[00:17:07] Speaker 00:
Or did it come from, let's say it came from Connie Callahan's website.

[00:17:13] Speaker 00:
It seems that the databases were databases that everyone uses.

[00:17:20] Speaker 02:
But not everybody uses in the same way.

[00:17:23] Speaker 00:
And so that's easy enough to say.

[00:17:26] Speaker 02:
It is easy enough to say that they could produce numbers based on their untrained, untrained, unrefined use of that data.

[00:17:34] Speaker 04:
That's not what was said though.

[00:17:38] Speaker 04:
By the ALJ?

[00:17:40] Speaker 02:
Which is what we're looking at.

[00:17:42] Speaker 02:
But even if we looked at the details that isn't produced using the same methodology, and we can see that it wasn't the same methodology, it's not significant or appropriate enough.

[00:17:54] Speaker 01:
Can we see that?

[00:17:56] Speaker 02:
I believe so.

[00:17:58] Speaker 01:
Just because the ALJ says I'm relying on the experience of the vocational expert, that doesn't tell us anything about the methodology the expert or the submitted material uses, does it?

[00:18:09] Speaker 02:
It tells us that the ALJ was relying more upon an expert's opinion than... That is what it tells us.

[00:18:17] Speaker 01:
Well, it tells us that he's relying on the expert.

[00:18:21] Speaker 01:
It doesn't tell us anything more than that based on the expert's expertise, right?

[00:18:25] Speaker 02:
And if there was more robust replication of the application experts methodology and some sort of professional refinement of the data that Pali submitted, the ALJ probably should have given a more robust explanation.

[00:18:42] Speaker 02:
But when we see how in Kilpatrick versus in these other cases how we're not duplicating the methodology and we're using unrefined data to

[00:18:53] Speaker 02:
produced numbers that are widely discrepant, but unlike in Buck versus Berryhill or unlike in White versus Wishman, there's not been any curtailment of the cross-examination of the vocational expert and that there's not any, that we don't see the exact duplication of the methodology.

[00:19:12] Speaker 04:
Isn't this exactly like Buck where they said,

[00:19:15] Speaker 04:
This is simply too striking to be ignored.

[00:19:19] Speaker 04:
Zero jobs that they submitted versus the numbers that the VE testified to.

[00:19:25] Speaker 02:
I think it's not surprising that the numbers are very different because of how they weren't using the same methodology or using

[00:19:30] Speaker 02:
Any professional experience?

[00:19:32] Speaker 02:
The vocational expert testified that the job numbers for eyeglass assembler were based on a combination of sources like data axle, a commercial service, and the extrapolation of job numbers from optical laboratories.

[00:19:46] Speaker 02:
The vocational expert did not testify that he was unable to determine the number of optical laboratories.

[00:19:50] Speaker 02:
He testified that he needed to use his combination of professional experience and sources to arrive at that number because those databases did not produce that data for them.

[00:19:59] Speaker 02:
And instead of drilling down during the hearing to determine what the identity of those databases were, Howley's attorney instead submitted US Census Bureau data that they claim captures the entire

[00:20:12] Speaker 02:
way that you could, all the different ways you could become an eyeglass assembler, but also seems to admit that those, that database doesn't contain, excuse me, glosses over the fact that that data they submitted doesn't include retail settings for assembling eyeglasses, doesn't include

[00:20:30] Speaker 02:
Anything that resembles the vocational expert's testimony?

[00:20:33] Speaker 00:
Well, we've taken you over your time.

[00:20:36] Speaker 00:
Let me find out if my colleagues have any additional questions.

[00:20:39] Speaker 00:
They do not appear to.

[00:20:40] Speaker 00:
So that will conclude your comments.

[00:20:42] Speaker 00:
Thank you.

[00:20:48] Speaker 03:
Thank you, Your Honors.

[00:20:49] Speaker 03:
I'd like to talk a little bit more about the expert's testimony about the eyeglass industry.

[00:20:55] Speaker 03:
In describing his overall process, the expert testified that he would use a business directory to determine the number of businesses within the industry and then use that to try to draw some assumptions from that number of jobs, which sounds like guesswork to me, but let's assume it's educated guesswork.

[00:21:12] Speaker 03:
He then testified that there is no reliable data on the number of businesses for the optical goods industry.

[00:21:19] Speaker 03:
So that means his process is starting with a number that by his own admission doesn't exist and then proceeding with

[00:21:25] Speaker 03:
educated guesswork, but guesswork nonetheless.

[00:21:27] Speaker 03:
There's no possible way that that can get a reliable number.

[00:21:30] Speaker 04:
I think their point is that the methodology was not necessarily used in the same way, and that's what produced the different numbers.

[00:21:37] Speaker 04:
And because of that, it's not a sufficient comparable, if you will.

[00:21:45] Speaker 03:
I don't disagree with that, but I also would again state that there's not an overt requirement that we duplicate the vocational experts process.

[00:21:53] Speaker 03:
We merely have to offer evidence that is significant and probative.

[00:21:58] Speaker 00:
Would your case be less strong if the numbers were close and the ALJ said... If the numbers were closer, there'd be some room for interpretation.

[00:22:08] Speaker 03:
Sure.

[00:22:08] Speaker 00:
And said, I'm relying on the expert, and then you just kind of

[00:22:12] Speaker 03:
You know, if our numbers were 90% of the experts' numbers, I don't think we'd have a leg to stand on.

[00:22:18] Speaker 00:
OK.

[00:22:19] Speaker 00:
I'm sorry.

[00:22:19] Speaker 00:
No, no, no.

[00:22:20] Speaker 04:
What should the rule be then?

[00:22:22] Speaker 03:
I think the rule is that the evidence must be significant and probative, and that analysis is done on a case-by-case basis.

[00:22:29] Speaker 03:
I think in this case, the vocational expert is giving a number for one industry that's 150% of the total for the industry according to the census.

[00:22:39] Speaker 03:
And for the other, he's relying on a source, SkillTran, that when we go to SkillTran and ask for the same number at a DOT-specific level, we get a number that's 1,000 times less.

[00:22:51] Speaker 00:
All right, you're over your time unless my colleagues have additional questions that will conclude argument in this matter in this case will be submitted.

[00:22:57] Speaker 00:
Thank you both for your argument