[00:00:01] Speaker 01: Next we have Proctor versus Bisognano. [00:00:05] Speaker 00: Good morning, Your Honors, Opposing Council. [00:00:29] Speaker 00: May it please the Court [00:00:31] Speaker 00: This case concerns, sorry, Allison Young, four appellate, Kath and Proctor. [00:00:36] Speaker 00: This case concerns a finding that jobs exist in significant numbers in the national economy that Ms. [00:00:41] Speaker 00: Proctor can perform. [00:00:42] Speaker 00: Specifically, this case concerns a commissioner's failure to address rebuttal evidence submitted to the appeals council. [00:00:50] Speaker 00: Just as a brief refresher, the occupations at issue in this case are an optical final assembler, [00:00:56] Speaker 00: a touch-up screener of circuit boards, and an eyeglass frame polisher. [00:01:01] Speaker 00: The vocational expert testified to relying on multiple sources, including the Department of Labor, Bureau of Labor Statistics, collaboration with head economists in each state and with other vocational experts in the nation. [00:01:13] Speaker 00: And then when asked if he used any sort of program, he confirmed using Job Browser Pro. [00:01:19] Speaker 00: So Council submitted rebuttal evidence generated through Job Bowser Pro, showing that there were significantly less jobs than the vocational expert indicated. [00:01:28] Speaker 00: The vocational expert's testimony would suggest somewhere north of 115,000 jobs between these three occupations. [00:01:35] Speaker 00: Council's rebuttal evidence showed 2,247 between the three. [00:01:39] Speaker 00: So obviously, that's about 2% of the vocational expert's estimate. [00:01:44] Speaker 00: The appeals council incorporated this evidence into the record, making it, in effect, [00:01:48] Speaker 00: a part of the body of evidence on which the judge's decision was based, did not otherwise address it. [00:01:55] Speaker 00: So there's a line of cases on counsel's ability to rebut vocational evidence. [00:02:00] Speaker 00: It really starts with Buckley Berry Hill back in 17, wherein the representative submitted evidence from the same source that the vocational expert had relied on that showed a vast discrepancy. [00:02:14] Speaker 00: and the court remanded. [00:02:16] Speaker 00: Shortly thereafter, there was shy B.V. [00:02:18] Speaker 00: Berryhill indicating that rebuttal evidence has to be presented during the administrative process. [00:02:23] Speaker 00: It cannot arise in the first instance in federal court. [00:02:28] Speaker 00: After that, there was a turning point in Kilpatrick where the court actually announced a standard, which is that in order to be required to consider evidence, rebuttal evidence, it must be significant and probative. [00:02:43] Speaker 00: The Kilpatrick court noted that the evidence in Buck, because it came from the same source that the vocational expert used, clearly met that standard. [00:02:52] Speaker 03: May I ask, here it seemed like there were multiple sources used. [00:03:00] Speaker 03: The questioning is, well, what's the source of your job numbers? [00:03:02] Speaker 03: And they say, okay, multiple sources, DOL, Bureau of Labor Statistics, Head Economist, et cetera. [00:03:10] Speaker 03: Do you use any program like Job Browser? [00:03:13] Speaker 03: I do. [00:03:14] Speaker 03: I use printing of Job Browser Pro. [00:03:17] Speaker 03: So there's this kind of a constellation of, [00:03:22] Speaker 03: foundation for the opinion. [00:03:26] Speaker 03: How does that figure in here when we don't know exactly which numbers were the were the foundation? [00:03:37] Speaker 00: Well, I think that goes to Appellee's primary argument is that our rebuttal evidence didn't replicate the vocational experts method. [00:03:45] Speaker 00: And that, I think, is a central point of contention between the parties. [00:03:48] Speaker 00: I don't believe we need to replicate the vocational experts method. [00:03:51] Speaker 00: I think that's based on a misunderstanding of the case law. [00:03:54] Speaker 00: The requirement is that our rebuttal evidence be significant and probative. [00:03:58] Speaker 00: If the court meant that to mean we have to replicate the vocational experts method, I think the court would have said that at some point. [00:04:05] Speaker 00: And the court didn't say that. [00:04:06] Speaker 01: Is it actually possible? [00:04:06] Speaker 01: I mean, here we have approved vocational experts relying on essentially their personal knowledge, their connections, their conversations they may have had with other experts. [00:04:17] Speaker 01: And that seems actually something that no advocate, no representative could actually replicate then, which then would mean there's a whole category of vocational expert testimony that [00:04:32] Speaker 01: cannot be rebutted. [00:04:33] Speaker 01: I don't think we've ever suggested that that should be the case. [00:04:38] Speaker 00: I would agree with Your Honor on that point. [00:04:40] Speaker 00: As noted in the brief, SkillTrans Job Browser Pro does derive its numbers from the Department of Labour, Bureau of Labour Statistics, and it is continuously peer-reviewed, which means, in effect, it is a process that's collaborating with other vocational experts in the nation. [00:04:57] Speaker 00: I'm having difficulty conceiving of how Council could effectively [00:05:01] Speaker 01: Consult with state head of the heads of economies and even if we could I'm not sure how we could document that process to the court's satisfaction So my understanding is your position be you can't replicate the process, but you've replicated essentially part of what The ve relied on and that's at least we bottle evidence in which case then it would be on the agency to consider it and decide whether that's [00:05:27] Speaker 01: whether there's then a response to that rebuttal that still substantiates the VE's numbers. [00:05:33] Speaker 01: Is that fair to say what you think should happen next if we agreed with you? [00:05:37] Speaker 00: I think that's fair to say. [00:05:39] Speaker 00: What should happen next is that this evidence should be at least addressed. [00:05:46] Speaker 00: I want to reiterate, it doesn't make sense to require that the rebuttal evidence replicate the vocational experts process. [00:05:55] Speaker 00: The Supreme Court in Bistec v. Berryhill, which kicked a lot of this off really, had said that there's no affirmative obligation for vocational experts to even explain their underlying data or reveal that data. [00:06:08] Speaker 00: And the Supreme Court in Bistec acknowledged that vocational testimony itself might be so feeble or contradicted that it would fail to clear the substantial evidence bar. [00:06:18] Speaker 00: In that case, obviously, it would not make sense to require rebuttal evidence to replicate that feeble process. [00:06:25] Speaker 03: You know, we're kind of in an odd situation because there was sort of a next round of questioning, okay, here's the things I looked at, DOL, this probe browser, job browser. [00:06:38] Speaker 03: And then I looked at all that, but, you know, did you rely on the job browser? [00:06:44] Speaker 03: We don't know that. [00:06:45] Speaker 03: I mean, it is this constellation. [00:06:47] Speaker 03: So I think you've presented kind of an unusual case here. [00:06:52] Speaker 03: where you don't have to impugn this uncertain. [00:06:56] Speaker 03: But if you don't, then you're stuck, right? [00:06:58] Speaker 00: Right. [00:06:59] Speaker 03: But from our point of view, we're looking at it a little bit differently. [00:07:03] Speaker 03: And that is, well, is there substantial evidence? [00:07:06] Speaker 03: So that's really the lens that we're looking at. [00:07:10] Speaker 03: Could you address that? [00:07:11] Speaker 00: I would. [00:07:12] Speaker 00: I think this case is like White, which is one of the two most recent cases on this line. [00:07:18] Speaker 00: In White, rebuttal evidence was presented from Job Browser Pro, which the court noted was a case widely relied on by vocational experts in social security cases, and indeed by the expert in that case. [00:07:31] Speaker 00: The same is true here. [00:07:32] Speaker 00: Granted, this vocational expert presumably had other sources to draw on, but those sources don't give [00:07:39] Speaker 00: DOT-specific numbers. [00:07:41] Speaker 00: The Department of Labor doesn't rely on the DOT anymore. [00:07:43] Speaker 00: It's 30 years old. [00:07:45] Speaker 00: So in order to get DOT-specific numbers, you either have to come up with some method to translate the data from the Department of Labor, or you have to use a program that does it for you, such as Job Browser Pro. [00:07:57] Speaker 03: What is the specific relief that you think is warranted here? [00:08:01] Speaker 00: What's warranted here is remand for further proceedings to investigate this rebuttal evidence and or get new vocational testimony that doesn't rely on those sources. [00:08:11] Speaker 03: But when you say investigate this rebuttal evidence, what does that mean? [00:08:14] Speaker 00: The commissioner needs to address in the first instance whether this vocational rebuttal evidence undermines the vocational testimony or not. [00:08:23] Speaker 00: They haven't done that. [00:08:24] Speaker 00: They haven't addressed it at all. [00:08:25] Speaker 00: They've just put it in the record. [00:08:27] Speaker 01: So in theory, right, they could have [00:08:30] Speaker 01: I assume the VE they could say this isn't you know we this rebuts part of the VE's evidence but you know the VE in theory could have said you know I considered those numbers but then based on X Y and Z sources those numbers got revised to [00:08:48] Speaker 01: That's my how I ended up with higher numbers But they have to have some sort of offer some sort of explanation Or they could say I ran job pros or pro and these are the different numbers I came up with and you know this is why councils numbers are incorrect [00:09:05] Speaker 00: That's one possibility. [00:09:07] Speaker 00: I don't want to predict what findings the Appeals Council would or could make, and depending on what findings they would or could make, we might be here having a different argument as to whether those findings are sufficient. [00:09:17] Speaker 01: But in theory, I'm just saying in your mind that it's addressing your rebuttal evidence could be any one of those things. [00:09:24] Speaker 01: Yes. [00:09:27] Speaker 01: correct and we need to go back and get more explanation. [00:09:31] Speaker 00: Depending on how they addressed it, we might still be here on appeal, but they didn't address it at all. [00:09:35] Speaker 00: That inexorable zero is why I'm standing here today. [00:09:38] Speaker 01: The only question is whether it's significant and probative enough that they needed to address it better. [00:09:43] Speaker 00: Right. [00:09:44] Speaker 00: Okay. [00:09:44] Speaker 00: I have time for just one final point here, which is that the question here is whether this evidence that counsel generated from Job Browser Pro meets the significant and probative standard. [00:09:56] Speaker 00: In my mind, I can't see how that could turn on whether the vocational expert also used that program. [00:10:02] Speaker 00: Job Browser Pro is either reliable or it isn't, and that doesn't depend on whether this vocational expert happened to use it. [00:10:09] Speaker 03: Because it could impeach the data whether the VE used it or not, you're saying. [00:10:15] Speaker 00: Right. [00:10:16] Speaker 00: In this case, the vocational expert did use it, at least in part, and so it does have some impeachment value, but it also independently is, I think, significant and probative. [00:10:26] Speaker 01: So if the V, I know we'll give you time for rebuttal, but if the V had not used job pros or pro at all, you're saying, but you have this otherwise widely accepted source of information that you can show you used in a way that makes sense and produced intelligible numbers, that would still be significant and probative. [00:10:46] Speaker 00: I think it would. [00:10:47] Speaker 01: But technically, we don't have to address that question because it was used here. [00:10:51] Speaker 00: I entirely agree. [00:10:52] Speaker 01: Thank you. [00:10:54] Speaker 01: Thank you. [00:11:00] Speaker 02: Good morning, Your Honors. [00:11:02] Speaker 02: May it please the Court. [00:11:03] Speaker 02: Lindsay Payne on behalf of the Commissioner of Social Security. [00:11:06] Speaker 02: Now, this Court has never remanded based on alternative numbers presented for the first time to the Appeals Council that used a methodology different from that used by the vocational expert. [00:11:22] Speaker 02: However, I do want to address some of the concerns that were raised during my opponent's opening argument. [00:11:30] Speaker 02: First of all, as Judge McCune noted, there were a constellation of sources used here that were not used by a claimant's attorney when they performed their own search from Job Browser Pro. [00:11:48] Speaker 02: We have an expert with more than 30 years of experience that used a variety of sources. [00:11:54] Speaker 02: And I know the court raised the point that [00:11:59] Speaker 02: with some of these sources, it wouldn't always be possible for a claimant to exactly duplicate the vocational expert's methodology. [00:12:08] Speaker 02: And that's why contrary to claimants characterization of the commissioner's argument, we are not proposing a bright line categorical rule that says any one of the factors the court has set forth in cases such as Wishman and [00:12:28] Speaker 02: uh, Kilpatrick were, uh, absolutely required. [00:12:34] Speaker 02: Um, but it is noteworthy. [00:12:37] Speaker 02: The court has not ever remanded when a different methodology was used. [00:12:43] Speaker 02: And it's also difficult to imagine a case, um, where the evidence would be sufficiently probative to undermine the vocational expert's testimony when there is neither the same methodology nor [00:12:57] Speaker 02: any particular expertise associated with the alternative job numbers that have been submitted. [00:13:06] Speaker 03: Let me just interrupt there as a matter of common sense. [00:13:10] Speaker 03: I recognize that the social security proceedings are their own sui generis operation. [00:13:16] Speaker 03: But if you have a set of testimony and then you offer some rebuttal or attack on that, [00:13:24] Speaker 03: You don't have to necessarily do it one for one. [00:13:27] Speaker 03: It doesn't mean that it couldn't be undermined. [00:13:29] Speaker 03: So that's true in general evidentiary construct. [00:13:35] Speaker 03: Why wouldn't that be here? [00:13:36] Speaker 03: It may not be perfect. [00:13:37] Speaker 03: It might not even work. [00:13:39] Speaker 03: But why wouldn't that be considered? [00:13:43] Speaker 02: Well, so we're in a situation where no cross-examination was made by claimant's attorney [00:13:51] Speaker 02: of the vocational expert regarding how he used the sources that he used. [00:13:59] Speaker 02: No attempt was made to present any of this evidence to the ALJ despite the fact that two months passed between the ALJ hearing and the ALJ decision. [00:14:11] Speaker 02: There was plenty of opportunity to get more information from the vocational expert, Mr. Corbin, if wanted, and [00:14:20] Speaker 02: that is not 100% preclusive of the claimants' arguments in this case. [00:14:28] Speaker 02: However, the court recognized in Kilpatrick that a balance must be struck in cases like these where claimant has not availed herself of the opportunities to develop a record. [00:14:42] Speaker 02: She could have asked, even without the ability to pull up alternative job numbers on the fly, could have asked Mr. Corbin [00:14:50] Speaker 02: how he used Job Browser Pro, how did he use these other sources, and it is important to note that- How does the fact that she didn't ask those questions make the rebuttal evidence less significant in probing him? [00:15:05] Speaker 02: Well, for example, we can imagine a scenario where not the exact same methodology is used by the claimant for their alternative numbers, but [00:15:21] Speaker 02: they've developed enough of a record that it does undermine the reliability of what the vocational expert did in this case. [00:15:30] Speaker 02: And that's not the situation here. [00:15:33] Speaker 02: And so now we're left with the significant and probative evidence standard. [00:15:38] Speaker 02: And if we don't apply- Can I just stop you there? [00:15:43] Speaker 03: So you're not saying that [00:15:46] Speaker 02: That is not enough. [00:16:02] Speaker 02: they did not avail themselves of that opportunity. [00:16:05] Speaker 01: So now we have a situation where... I'm sorry to interrupt, but it's confusing because case law very clearly says because the way that these hearings work, there is no advance notice essentially of what the VE is going to testify about their method, about the numbers, about the jobs they're going to identify, which is why we said, [00:16:25] Speaker 01: the claimant can submit rebuttal evidence after the hearing is done. [00:16:30] Speaker 01: That's very clear in our precedent. [00:16:33] Speaker 01: And then we say if it's significant and probative, rebuttal evidence has to be addressed. [00:16:42] Speaker 01: So it seems to me, in that situation, the way things work, I don't understand why [00:16:51] Speaker 01: You know, more questions at the hearing would affect whether the post-hearing rebuttal evidence that specifically addresses their jobs and the numbers identified by the VE would not be significant and probative. [00:17:07] Speaker 02: Well, there's other ways that they could have submitted more probative evidence, even if they didn't [00:17:12] Speaker 02: avail themselves of opportunities before the ALJ. [00:17:16] Speaker 02: So they could have provided... You're saying because there could have been more? [00:17:18] Speaker 01: I mean, I guess there's a... But to me, there's just this foundational question that you're skipping, which is the rebuttal evidence that was offered, we have to address, was that significant and probative? [00:17:30] Speaker 01: And what I hear you keep saying is, well, they could have done other things that would have also been significant and probative. [00:17:36] Speaker 01: But I guess I still want to understand why these particular information [00:17:41] Speaker 01: was not, in your view, not significant and probative. [00:17:44] Speaker 01: And I understand you're saying that you're not making a categorical rule that it has to exactly match the method that was used by the VE. [00:17:53] Speaker 01: So let's put that to the side. [00:17:54] Speaker 01: I understood your other argument in the brief was that there was an expertise demonstrated by council in using job browser prone. [00:18:02] Speaker 01: I understand the response to be this is a fairly straightforward program. [00:18:07] Speaker 01: I've explained my methodology in a rational way that anyone can understand, and the numbers are comprehensible. [00:18:15] Speaker 01: So what other level of expertise is actually necessary to demonstrate for these numbers to be significant and probative? [00:18:28] Speaker 02: Well, we don't actually have comprehensive information about how these numbers were generated in Job Browser Pro. [00:18:36] Speaker 02: While claimant's attorney has asserted that they ran a search using the DOT numbers and without applying any filters, that's not exactly how that program works. [00:18:52] Speaker 02: There are various options for how to run searches in that program. [00:18:58] Speaker 02: There are always variables, and that's the very reason that the court in Wishman pointed out it is merely a tool that must be used appropriately. [00:19:09] Speaker 02: And in the ordinary run of business, that would ordinarily require expertise. [00:19:17] Speaker 02: Nothing in this case takes it outside of that normal rule. [00:19:22] Speaker 02: What was presented here is very similar to what was presented in Wishman. [00:19:27] Speaker 02: which the court found was not probative. [00:19:30] Speaker 02: And on that point, I'd like to highlight that although there were some other problems with the printouts in Wishman, the DOT number specific national job numbers were clearly labeled and presented in the same way as they were here. [00:19:47] Speaker 02: The court describes what was presented in Wishman at page 503 of that opinion in detail. [00:19:57] Speaker 02: that is the exact same information, those DOT specific US national numbers that Klayman is attempting to rely on here. [00:20:07] Speaker 02: And that is the exact same results that the Wishman court called not comprehensible to a lay person because it is just raw data and it does not show what options were selected in the program to generate that data. [00:20:23] Speaker 02: If Klayman's arguments were accepted, [00:20:27] Speaker 02: There would be no reason why we would ever need vocational experts in social security cases whatsoever. [00:20:34] Speaker 02: A lay person has run a search without any foundation from a vocational expert establishing that this is an appropriate way to use the program. [00:20:46] Speaker 02: Just because it's used reliably in some cases doesn't mean it was used reliably here. [00:20:51] Speaker 02: They haven't. [00:20:52] Speaker 03: Did that go to the weight as opposed to the trying to evaluate it? [00:20:58] Speaker 02: I would say it goes to whether they've crossed the threshold for probativeness in this case. [00:21:04] Speaker 02: It needs to have certain indicia of reliability and undermine the vocational experts' testimony sufficiently that we can say there's a reasonable probability that if the ALJ had these three pages of printouts, the outcome of the case would have been different. [00:21:22] Speaker 01: Well, I guess what I find troubling, I mean, [00:21:26] Speaker 01: is if the BIA had simply said, you know, job pros are pro, these filters needed to be put on [00:21:36] Speaker 01: You know, the council said that they ran the search without any filters. [00:21:40] Speaker 01: That was, it's not probative for these reasons. [00:21:43] Speaker 01: I don't think we'd be here, right? [00:21:45] Speaker 01: But there's absolutely no, I mean, it is rebuttal evidence. [00:21:48] Speaker 01: It may not be ultimately enough to actually rebut, but it seems to me there was an explanation given. [00:21:55] Speaker 01: This is a widely used program. [00:21:57] Speaker 01: Here's how I did it. [00:21:58] Speaker 01: Here's how I generated the numbers. [00:21:59] Speaker 01: You know, these are the numbers I ended up with. [00:22:02] Speaker 01: I think in any normal evidentiary hearing, there would be a response that doesn't actually, you know, undercut these numbers for these reasons, or it does, and we need to go back and do more. [00:22:13] Speaker 01: But we have no explanation. [00:22:15] Speaker 01: Otherwise, what seems to me to be something fairly commonsensical, I can understand it. [00:22:21] Speaker 01: I understand what, I'm not an expert, but I understand what counsel is saying they did and the results that they produced. [00:22:28] Speaker 01: And it seems to me, [00:22:29] Speaker 01: on its face to be significant and probative and I have no response from the agency explaining why that's incorrect. [00:22:37] Speaker 02: I mean this is the exact same issue that the court addressed in Kilpatrick and said that they didn't because of the significant and probative standard that you have to meet that that standard for it to have been required for the agency to [00:22:59] Speaker 02: specifically give an in-depth explanation of why it was not accepted. [00:23:05] Speaker 02: And the court went so far in Kilpatrick, which is a published decision, as saying ALJs don't have to address evidence that is presented by a lay witness that the lay witness was not competent to present. [00:23:19] Speaker 02: We have an expert with 30 years of experience versus [00:23:24] Speaker 02: someone with no expertise running a search. [00:23:27] Speaker 01: What would counsel have to do to show that they were sufficiently used? [00:23:33] Speaker 01: Are you saying counsel could never do it unless they were essentially qualified as an expert witness on using Job Browser Pro? [00:23:42] Speaker 01: What would, in your view, a claimant have to do to show the sufficient expertise to make this significant? [00:23:49] Speaker 01: I don't think we've ever set out that counsel could not [00:23:54] Speaker 01: run a program like this and come up with an adequate explanation. [00:23:59] Speaker 01: We've given an example in which they didn't do enough when the results were not explained enough. [00:24:09] Speaker 02: So assuming that nothing more was done at the hearing, as we have here, and it's just based on the face of what was submitted to the appeals council, one, there [00:24:22] Speaker 02: There could be the situation where they do get an explanation from someone with expertise other than counsel. [00:24:30] Speaker 02: And that would go a long way towards probativeness. [00:24:37] Speaker 02: And that is something that attorneys do in some cases. [00:24:40] Speaker 02: They consult their own experts. [00:24:42] Speaker 02: So that's something that they could have done that might meet the probativeness standard on the facts of that case. [00:24:50] Speaker 02: Alternatively, where we don't have any sort of expert involvement in the case, then they could use the same methodology that was used by the vocational expert at the hearing, which is what has happened in every case that the court has remanded on this issue. [00:25:12] Speaker 02: they've always used the exact same method that was used by the vocational expert. [00:25:17] Speaker 02: And to be clear, the court has been clear in Kilpatrick and honestly in BSTEC, and this is a distinguishment I wanted to make from what Klayman said in the reply brief, BSTEC and Kilpatrick do not stand for the proposition that [00:25:37] Speaker 02: a vocational expert never needs to reveal their methodology. [00:25:41] Speaker 02: If Mr. Corbin had been asked how he used his sources, he would have had to explain that. [00:25:49] Speaker 02: But BSTEC and Kilpatrick do make clear that the vocational expert does not need to reveal all of their data and that even if [00:26:02] Speaker 02: the claimant is not able to exactly duplicate the vocational experts methodology because they don't have that data. [00:26:12] Speaker 02: That doesn't mean that simply running numbers through Job Browser Pro is enough to be probative enough where you have a case like here with an accomplished expert using a variety of sources. [00:26:29] Speaker 03: would you comment on Council's statement that at this point, the Department of Labor approach or statistics have been deemed to be essentially outdated? [00:26:42] Speaker 02: Well, the DOT is outdated, which is part of why [00:26:48] Speaker 02: we do need vocational experts to interpret data and why in a case like this, it was very much to everyone's benefit that Mr. Corbin used a variety of sources that were current. [00:27:03] Speaker 02: However, the Department of Labor, there are still current labor statistics. [00:27:12] Speaker 02: They just aren't within the DOT. [00:27:18] Speaker 02: If there's no further questions from the court, we would ask you to affirm the district court's decision upholding the ALJ decision. [00:27:24] Speaker 02: Thank you. [00:27:27] Speaker 01: I would cancel a minute or two minutes for rebuttal. [00:27:32] Speaker 00: Thank you, Your Honor. [00:27:34] Speaker 00: There are two primary things that vocational expert does at a hearing. [00:27:38] Speaker 00: One, perhaps the most important is to identify jobs that the claimant can do within the residual functional capacity. [00:27:45] Speaker 00: The vocational expert here identified these three jobs, and we're not contesting the identification of the jobs. [00:27:51] Speaker 00: Then the question becomes, well, do those jobs exist in significant numbers? [00:27:56] Speaker 00: That's a fact. [00:27:57] Speaker 00: It's not a matter of scientific opinion. [00:27:59] Speaker 00: It may be difficult to count how many optical final assemblers there are in the nation, but there is a factual number of how many there are. [00:28:08] Speaker 00: And the vocational experts seem to think there were nearly 60,000 of them. [00:28:13] Speaker 00: Job Browser Pro says there are 26. [00:28:15] Speaker 00: That's a difference of a factor of 2,000. [00:28:17] Speaker 01: There's some greater expertise needed to use Job Browser Pro in terms of selection of filters. [00:28:23] Speaker 01: I understand you submitted it with an explanation of how you did it. [00:28:27] Speaker 01: You put in the DOT numbers. [00:28:28] Speaker 01: You said no filters. [00:28:30] Speaker 01: And you got numbers. [00:28:31] Speaker 01: That seems fairly straightforward to me in terms of my lay understanding of how any database would work. [00:28:37] Speaker 01: So I suppose the response is, if you had asked, the VE would have said, I use X, Y, and Z filters, or I had done something else when I used Job Browser Pro, or that could be an expert would have made some other choices in Job Browser Pro. [00:28:56] Speaker 01: Can you address that? [00:28:58] Speaker 00: I don't know what other choices the expert could have made to turn 26 jobs into 60,000. [00:29:03] Speaker 00: Filters would reduce the number, as far as I understand it. [00:29:06] Speaker 00: They'd have to be adding other industries and saying, oh, these also exist in this industry, even though Job Browser Pro didn't say they do. [00:29:13] Speaker 00: Oh, they exist in this industry as well. [00:29:16] Speaker 00: And maybe he can back that up somehow. [00:29:19] Speaker 00: I don't know. [00:29:19] Speaker 00: That might be something that could be done to address this evidence as rebuttal, and perhaps might happen on remand. [00:29:27] Speaker 00: The fact remains that this rebuttal evidence, as far as it goes, shows a vast discrepancy between the vocational expert's number and the number generated directly by Job Browser Pro, and that discrepancy has not been addressed by the agency. [00:29:41] Speaker 03: So I just want to ask another question because the VE says, well, not just Job Browser Pro, but I also consulted with head economists in each state that deal with employment numbers. [00:29:56] Speaker 03: What do you do with that? [00:29:58] Speaker 00: I honestly don't know what to do with that. [00:30:00] Speaker 00: There's no way we could replicate that process. [00:30:02] Speaker 00: And even if we could replicate that process, I don't see how we'd document it to the court that we did. [00:30:09] Speaker 00: To require that would be to essentially make vocational expert testimony incontestable. [00:30:19] Speaker 00: If there's nothing further. [00:30:20] Speaker 01: Nothing further. [00:30:21] Speaker 01: Thank you, Council, for your helpful arguments. [00:30:23] Speaker 01: And we are adjourned for today? [00:30:25] Speaker 01: The week? [00:30:26] Speaker 01: We're done. [00:30:27] Speaker 01: Thank you. [00:30:28] Speaker 01: All rise.