[00:00:00] Speaker 00: Thank you, Your Honor. [00:00:01] Speaker 00: John Metzger appearing on behalf of Jacob Vlasquez. [00:00:04] Speaker 00: So this is a Social Security disability case where the Commissioner [00:00:08] Speaker 00: has attempted to meet his burden at step five of the sequential evaluation process by finding that the claimant is capable of doing an unknown percentage of a large number of jobs. [00:00:20] Speaker 00: This approach obviously has no statistical validity and therefore cannot constitute substantial evidence upon which a disability decision may be upheld. [00:00:32] Speaker 00: Now this error was all the more egregious [00:00:35] Speaker 00: because the Appeals Council after Mr. Vlasquez's first trip to district court in 2020, the Appeals Council specifically instructed the ALJ not to make the same mistake again. [00:00:47] Speaker 00: And it undaunted the ALJ did. [00:00:51] Speaker 00: The reason the ALJ was unable to comply with the Appeals Council's remand order [00:00:55] Speaker 00: is because the commissioner has specifically trained his vocational experts to give job numbers for large groups of occupations instead of for the individual representative occupation that they're identifying. [00:01:09] Speaker 04: So do you think this is something that's happening? [00:01:11] Speaker 04: It's interesting because I've heard a lot of social security cases, and this is the first one I've ever seen this argument get made. [00:01:16] Speaker 04: Is this something that you think is happening in essentially every social security case? [00:01:22] Speaker 00: It is very, very widespread. [00:01:25] Speaker 00: You will see there are a lot of, if you look through the history, you'll see there's a lot of occupations, the district court cases especially. [00:01:35] Speaker 00: You'll see a lot of times the 549,000 job number will be bantied around. [00:01:42] Speaker 00: For some reason, no circuit court has addressed this issue yet. [00:01:48] Speaker 00: And I think one of the reasons for that [00:01:53] Speaker 00: is that the commissioner uses various litigation tactics to make sure this issue doesn't get escalated to an appeals court, and they've certainly done that in this case. [00:02:04] Speaker 02: So you think it's a strategy that they're saying, hey, don't look at step five, let's go back to step three? [00:02:12] Speaker 00: It appears to be. [00:02:14] Speaker 00: And to date, after three years of litigating this case, [00:02:19] Speaker 00: They have yet to address any of my arguments on the merits in their briefs. [00:02:23] Speaker 00: And that seems to be a deliberate strategy. [00:02:26] Speaker 01: But at this point, I know you're frustrated with the process here, your client is, but you could re-raise these issues in front of the ALJ because it's been remanded? [00:02:36] Speaker 00: Oh, it was raised in front of the ALJ. [00:02:37] Speaker 00: And the ALJ, once he was informed that the vocational expert was giving job numbers for entire groups, just issued a decision in violation of the remand order. [00:02:50] Speaker 00: So it's like, that's kind of pointless to do that again. [00:02:53] Speaker 04: Do you have a case that says that in this kind of posture, the government just loses? [00:03:01] Speaker 04: I mean, I understand the idea that why should they get another chance? [00:03:05] Speaker 04: It's their burden, then they didn't meet it. [00:03:06] Speaker 04: But I don't usually, unless you have overwhelmingly met your burden, we don't usually order a grant of benefits. [00:03:13] Speaker 04: So is there a case that says they just don't get so many tries? [00:03:17] Speaker 00: Well, there's a substantial. [00:03:20] Speaker 00: substantial body of law on defense forfeiture and they've knowingly by refusing to address any of the issues that I've raised I think they've [00:03:30] Speaker 00: forfeited any reasonable defense. [00:03:33] Speaker 00: And maybe they'll make a defense today, we don't know. [00:03:37] Speaker 00: But it seems to be a little late in the game. [00:03:39] Speaker 00: And I believe that any defenses they may raise today would have been forfeited by failing to brief them either in this court or in the court below. [00:03:47] Speaker 01: But if the RFC determination is going to be reevaluated, wouldn't that then affect this whole issue, the step five issue? [00:03:57] Speaker 00: not according to their process. [00:04:00] Speaker 00: As they've demonstrated in this case, a re-evaluated RFC would result in a different RFC finding, and that would result in a different vocational expert saying that someone with that RFC could do an unknown percentage of a large number of different jobs, which again would just end us back here in front of this Court in about two years from now. [00:04:22] Speaker 02: Well, that assumes that they're going to follow the same process you mentioned. [00:04:27] Speaker 00: Well, we tried. [00:04:28] Speaker 00: They've already had one remand instruction not to follow that process. [00:04:33] Speaker 00: And they did it because it was the only way they could issue a denial. [00:04:35] Speaker 04: But they were using the same RFC at that point, right? [00:04:38] Speaker 04: So if they changed the RFC, I think when I asked the first question today about whether this always happens, [00:04:46] Speaker 04: You hedged a bit, like maybe not every job category is happening like this. [00:04:50] Speaker 04: So if it was a different RFC, are we sure they would do this error again? [00:04:55] Speaker 00: The 2020 RFC findings and the 2022 RFC findings were different. [00:05:03] Speaker 04: Oh, OK. [00:05:04] Speaker 04: But if they do a new RFC, it could be yet a third one. [00:05:08] Speaker 00: Yes, but that still doesn't address the problem of this process. [00:05:13] Speaker 00: They've specifically trained their vocational experts to follow, of citing job numbers for entire groups of occupations. [00:05:20] Speaker 02: And not specific to the claimant? [00:05:22] Speaker 02: Sure. [00:05:22] Speaker 00: And in this case, the vocational expert cited three separate occupations as being representative, but she was really citing job numbers for about 2,300 separate DOT occupations. [00:05:36] Speaker 01: But are they all, do you contend they're occupations that have different requirements for the worker? [00:05:42] Speaker 01: In other words, are they not analogous to the specific job that the VE gave? [00:05:49] Speaker 00: No, almost all of the occupations within those groups are going to be outside Mr. Velazquez's RFC. [00:05:54] Speaker 00: The vocational expert found one [00:05:57] Speaker 00: you know, that could, what might arguably be within his RFC, but then cited job numbers for the entire, entire groups. [00:06:07] Speaker 01: Well, one challenge obviously for us is that the district court didn't rule on this issue, so we don't have any ruling by which to review. [00:06:15] Speaker 01: The district court remands it to the ALJ. [00:06:17] Speaker 01: I understand you claim or contend that the district court actually couldn't do that to have the [00:06:23] Speaker 00: a l j take another look not just at the step five but also the r f c determination well i think the uh... the district court erred in uh... allowing the commissioner to effectively file a cross count cropped cross-complaint against his own decision and that practice has been uh... specifically disallowed by this court and uh... in brown because it causing uh... became a just and i wanted to ask you about this aspect of europe your case so uh... [00:06:52] Speaker 01: Is that how district courts and ALJs have interpreted Brown to prevent the commissioner from seeking a remand based on what's essentially an input into an otherwise unsuccessful request for benefits? [00:07:07] Speaker 01: Because Brown was a little different. [00:07:09] Speaker 01: Part of the request for benefits was actually granted. [00:07:12] Speaker 01: That's not true here. [00:07:13] Speaker 00: Sure. [00:07:15] Speaker 00: And there's only been a few district courts have ruled on that. [00:07:20] Speaker 00: And basically whether or not the commissioner can dictate what the terms are on remand by effectively cross-complaining against his own decision. [00:07:33] Speaker 00: There's just one the other day about two days ago out of the southern district of Texas. [00:07:37] Speaker 00: There's one out of the district of Oregon and a couple out of the lower courts here in California. [00:07:42] Speaker 04: So we're not bound by any of those, of course. [00:07:45] Speaker 04: And so to try to think about this question, I understand your argument under Brown because Brown does sound pretty broad in its wording, but usually we have rules for when you need a cross appeal, which seems a little bit analogous. [00:08:00] Speaker 04: So usually if you're arguing an alternative ground for affirmance, like the outcome should be the same, but for a different reason. [00:08:08] Speaker 04: The respondent or defendant or appellee can do that without cross-appealing because it's just another basis for the same outcome. [00:08:17] Speaker 04: It seems like what the government is doing here is a little bit like that. [00:08:20] Speaker 04: It's a little bit like an alternative ground for affirmance that wouldn't need a cross-appeal, so then arguably wouldn't need the cross-claim that you're worried about. [00:08:30] Speaker 04: But what's a little bit weird about it is it's actually for a remand, not just an affirmance. [00:08:35] Speaker 04: Any thoughts on why we shouldn't consider this like an alternative ground for affirmance? [00:08:44] Speaker 00: I think the best argument for that is it appeals. [00:08:48] Speaker 00: It appears to me to be a litigation tactic to get out of arguing the real issues that underlie this appeal. [00:08:56] Speaker 00: And if those issues aren't addressed as they weren't by the district court and haven't been by any appellate court, [00:09:03] Speaker 02: This is just going to keep coming up over and over again, and I'm going to keep seeing the... Well, is the other part of the problem that if you go back to step three analysis, then the burden now shifts again to the claimant, correct? [00:09:14] Speaker 00: Correct. [00:09:16] Speaker 00: But I mean, the two previous RFC findings, or the claimant has already, in the last six years, twice, met his burden at steps one through four. [00:09:28] Speaker 00: And there's no reason to think that wouldn't happen again. [00:09:36] Speaker 04: I'm not sure, but it seemed like the district court was worried about where the need for alternating between sitting and standing at any time was coming from. [00:09:50] Speaker 04: It's not impossible that there was a problem there, I think. [00:09:56] Speaker 04: Can you explain where that part of the RFC that your client needs the ability to sit or stand at any time is coming from in the medical records? [00:10:06] Speaker 00: Oh, I mean, he's sustained a severe back injury back in many years ago. [00:10:12] Speaker 00: And other than that, I don't know. [00:10:18] Speaker 00: That wasn't an issue. [00:10:20] Speaker 00: The specific RFC issue wasn't something that I briefed, and I don't have any citations memorized. [00:10:28] Speaker 04: But that's at least how I would I [00:10:31] Speaker 00: think is what the district court was worried about and why the district court thought a remand was needed to reconsider this is that different from your understanding about what the district court thought oh no that is what the district court thought but the district court considered my arguments to be moot and my point is that having a third RFC finding and having a third vocational expert [00:10:51] Speaker 00: say that a person with that RFC could do an unknown percentage of a large number of jobs doesn't get us any closer to resolution. [00:10:59] Speaker 00: It would only prolong this issue and could never get resolved. [00:11:03] Speaker 04: And you're saying that even if on a remand, the ALJ got rid of this sit-stand at any time and instead said something like, don't sit for more than an hour. [00:11:14] Speaker 04: I'm just making that up. [00:11:15] Speaker 04: But it said something slightly different. [00:11:17] Speaker 04: You're saying you're confident that at that point [00:11:20] Speaker 04: there would still be this over-categorization problem of the jobs that would be available? [00:11:26] Speaker 00: I'm saying that they've already had two bites at the apple and were specifically instructed not to let this issue or not to engage in this process again, and they did it because it was the only way they could come up with a denial. [00:11:42] Speaker 00: And I think [00:11:46] Speaker 00: You know, giving them a third bite at the apple so they can go again, come up with a third RFC and have a third vocational expert give some unsupported testimony would not get us any closer to resolution. [00:12:04] Speaker 04: Okay, we've taken you over your time. [00:12:05] Speaker 04: It seems like we don't have any more questions right now. [00:12:07] Speaker 04: I'll still give you two minutes for rebuttal, but let's hear from the other side. [00:12:10] Speaker 02: Thank you, Your Honor. [00:12:16] Speaker 03: Good morning, Your Honors. [00:12:17] Speaker 03: Elizabeth Fair on behalf of Frank Bisignano, the Commissioner of Social Security. [00:12:22] Speaker 03: I understand the court wants to talk about the substantial evidence, but this is a remedy case, and the standard of review here is whether or not the district court abused its discretion by remanding for further proceedings rather than a payment of benefits. [00:12:35] Speaker 03: And we don't have any legal or factual basis to find this claimant disabled on this record. [00:12:41] Speaker 03: Even if you agree with my opponent that the VE's testimony was [00:12:45] Speaker 03: deficient, there's no definitive evidence that there isn't a significant number of jobs that this claimant could perform on remand. [00:12:55] Speaker 03: And the district court was aware of everyone's arguments. [00:12:57] Speaker 03: It looked at the agency's argument that there was an error earlier in the LJ's decision. [00:13:03] Speaker 03: And it looked at claimants' arguments about the vocational evidence because it says specifically in the remand instructions that the agency should consider claimants' arguments about the vocational evidence. [00:13:13] Speaker 02: Counsel, can you... I'm just trying to understand whether or not we can go there. [00:13:20] Speaker 02: In other words, why doesn't Brown sort of foreclose your argument? [00:13:24] Speaker 02: And then tell me your position on how you see Brown. [00:13:29] Speaker 03: Brown is... I think that... [00:13:32] Speaker 03: claimants attorneys are using the favorable Terminology in Brown far too broadly that just means that the agency couldn't appeal the affirmative part of its affirmative for the claimant we you know we can't file complaints, but as Judge Friedland said that doesn't prevent us from going into court and and providing [00:13:55] Speaker 03: reasons why our ALJ decision was supported or was not. [00:13:59] Speaker 02: But the second part of her question is this, that you're asking for, again, not just essentially an affirmance, but you're asking for remit. [00:14:09] Speaker 02: That's what you're asking. [00:14:10] Speaker 02: You're asking for an additional thing. [00:14:13] Speaker 02: And isn't that, again, sort of a favorable position that you're essentially asking for? [00:14:21] Speaker 03: That's not true for a couple of reasons. [00:14:23] Speaker 03: The first reason is that I firmly believe that when Brown is talking about a favorable aspect, it is not talking about individual elements of an ALJ's decision. [00:14:34] Speaker 03: The court is supposed to look at the ALJ's decision as a whole, to parse out little pieces of it by saying they're favorable to a claimant or they're not, and the agency can't defend or decide that the agency had made a policy error. [00:14:48] Speaker 03: in an earlier stage of an ALJ decision just because the claimant didn't argue that is not consistent with Brown. [00:14:54] Speaker 03: But the other thing is everyone's assuming that because the RFC here was incorrectly supported that somehow that's in the agency's favor here. [00:15:04] Speaker 03: These cases have different evidence on remand. [00:15:06] Speaker 03: It's certainly possible that on remand the agency could find that claimant has a far more limiting RFC than what's in either of these ALJ decisions. [00:15:17] Speaker 03: It's possible the agency could find more impairments severe at step two. [00:15:22] Speaker 03: It's also possible that the agency could find step three, where maybe Clement has more evidence that proves he's presumptively disabled before you even look at an RFC. [00:15:34] Speaker 03: So these are all kinds of elements that can happen on a remand. [00:15:39] Speaker 01: I guess that might be true in Brown, too, though, that it could have gone back and the ALJ could have not only awarded benefits, but awarded even more benefits. [00:15:50] Speaker 03: Well, that did happen in Brown. [00:15:52] Speaker 03: The aspect of the ALJ's decision that wasn't favorable to the claimant was remanded. [00:15:58] Speaker 01: No, but I'm talking about the piece that the commissioner was trying to have sent back. [00:16:03] Speaker 01: In that case, I mean, I'm sympathetic to what you're saying generally about Brown, but I don't know about this piece of your argument, because you seem to be saying, well, look, we don't know what will happen on remand. [00:16:13] Speaker 01: It's possible the claimant will do even better than where he is now on the RFC, which seems fair. [00:16:21] Speaker 01: That might be also true in Brown with respect to the portion of the time period where benefits were granted. [00:16:28] Speaker 01: the claimant in that case not only could have gotten benefits, but could have gotten even more benefits. [00:16:33] Speaker 03: Well, but that was why it was remanded to see if the claimant could get more benefits. [00:16:37] Speaker 03: Once you get benefits, that's as favorable as you possibly can get. [00:16:40] Speaker 03: So the Brown Court remanded the unfavorable portion for a full further adjudication. [00:16:47] Speaker 03: So in that sense, the claimant could get more benefits. [00:16:49] Speaker 01: Can I ask you here, if all you had done in the district court [00:16:53] Speaker 01: in response to this argument about step five would say, we think this should be remanded and just said nothing more. [00:17:01] Speaker 01: Could you have gone back to the ALJ and say, OK, well, now that it's back here, we also want you to take another look at the RFC? [00:17:08] Speaker 03: Yes, because on remand, the ALJ is always supposed to do the five-step sequential analysis. [00:17:15] Speaker 03: It's really not appropriate for the court to say, well, everything else here is [00:17:24] Speaker 03: nothing but what the claimant argued about step five is in play because again the record changes on remand the ALJ is required to do the five-step sequential analysis just because you file a complaint in court and only challenge step four or five doesn't mean that there isn't these other analyses that the ALJ has to engage in. [00:17:43] Speaker 04: I don't think that's true is it so imagine another case where [00:17:49] Speaker 04: It's the only dispute on appeal with us is something about step five. [00:17:54] Speaker 04: There was some mistake in adding the numbers of the jobs or something. [00:17:57] Speaker 04: And so we say this needs to be looked at again. [00:17:59] Speaker 04: If we remand for just a step five evaluation to be fixed, the whole case doesn't start over, does it? [00:18:05] Speaker 04: I don't understand what you're saying. [00:18:07] Speaker 04: I don't think that's how it usually works when we, if there's just a step five problem on an appeal and we remand, I don't understand it to start over. [00:18:15] Speaker 03: Well, Your Honors, I mean, I guess if a court puts specific direction like that in a remand order, the agency is bound by what the court says. [00:18:23] Speaker 03: But what happens on remand is the ALJ has to adjudicate disability again. [00:18:31] Speaker 03: So we have it in our internal policy manual. [00:18:36] Speaker 03: It's called the HAL-X, where it says that in a court remand, generally, the agency [00:18:42] Speaker 03: reevaluates the case de novo. [00:18:44] Speaker 03: So that's our internal policy. [00:18:46] Speaker 03: And I do not think Brown in any way supports the idea that the agency can't look at anything in its decision on remand except for what the claimant challenge is. [00:18:59] Speaker 01: And in this case in particular... Just as a matter of practice, just as a matter of practice in the district courts and the ALJs, is what the commissioner did here common? [00:19:09] Speaker 01: In other words, if Brown were to actually prohibit this, [00:19:13] Speaker 01: What kind of effect would that have on the usual remand practice in the district courts? [00:19:20] Speaker 03: I don't know how to answer that question. [00:19:22] Speaker 03: I can say that I don't know what proof my opponent has that there's some kind of untoward policy the agency has to train VEs to provide [00:19:31] Speaker 03: inaccurate testimony. [00:19:34] Speaker 04: Just to follow up on this, that seems like a different answer than what I understand. [00:19:38] Speaker 01: Brown places some limits on what can be remanded. [00:19:42] Speaker 01: If here in this case, Brown meant that you can't actually ask for a remand on the RFC determination, what kind of impact is that going to have on the practice of just how these cases are handled when they go up to the district court and then get sent back down? [00:19:58] Speaker 03: Again, Brown is about [00:19:59] Speaker 03: the agency cannot challenge its own favorable finding. [00:20:03] Speaker 03: There isn't any basis. [00:20:05] Speaker 01: No, I understand the legal argument. [00:20:06] Speaker 01: I guess I'm more looking to you as somebody who practices in this area regularly, and your opposing counsel can offer the same comments. [00:20:13] Speaker 01: I'm just trying to understand, as a practical matter, what would it mean if Brown extends to this kind of new, kind of sub-level of a claim? [00:20:22] Speaker 03: Well, I think it would be inappropriate. [00:20:24] Speaker 03: And again, it would prohibit the agency from doing those things that I mentioned earlier that would actually be favorable to the claimant. [00:20:30] Speaker 03: Again, the agency could find the claimant disabled at step three, which is before the RFC, and the district court mistakenly referred to the RFC finding as step three. [00:20:40] Speaker 03: But again, so the agency is required to, we review all of these cases for policy compliance. [00:20:47] Speaker 03: If someone files a complaint, and this complaint is completely generic, so everything was in play based on the complaint here. [00:20:54] Speaker 03: So we look at our decision and we say, okay, can we defend this? [00:20:58] Speaker 03: Is it defensible? [00:20:59] Speaker 03: If we find an error in the decision that's not the same as what our opponent says, if you say the only thing that a court can remand for is what the claimant says, then you're essentially forcing the agency to defend issues in the ALJ's decision that might not be policy compliant. [00:21:15] Speaker 03: For instance, step two, say on remand, [00:21:19] Speaker 03: there's a case where there's no mental impairment. [00:21:21] Speaker 03: And we say, oh, well, the LJ didn't address that correctly. [00:21:24] Speaker 03: On remand, we should be able to correct that error. [00:21:26] Speaker 03: And that's what we have here. [00:21:28] Speaker 03: We have an error that's not the same as what Klayman identified, but it's still an error. [00:21:32] Speaker 03: And the district court looked at all of this. [00:21:34] Speaker 03: It did not abuse its discretion. [00:21:36] Speaker 03: There is no basis for my opponent's theory [00:21:39] Speaker 03: that he's entitled to benefits on this record. [00:21:42] Speaker 03: First of all, the standard of review is abuse of discretion. [00:21:45] Speaker 02: Well, hold on, but his claim is more specific. [00:21:47] Speaker 02: I mean, the summary judgment you read that it's talking only about step five, and it goes on to explain what the error that they indicate happened here, which, by the way, was the same error that occurred the last time. [00:22:01] Speaker 02: Why isn't he entitled, as the statute allows him, to appeal the portion of the decision that he thinks was wrong? [00:22:09] Speaker 02: And he did that. [00:22:10] Speaker 02: He appealed it to the district court. [00:22:12] Speaker 02: The district court then said, no, I'm going to follow what the commissioner said. [00:22:16] Speaker 02: I'm going to review step three, not what he filed. [00:22:20] Speaker 02: Why isn't that incorrect? [00:22:22] Speaker 03: Because the district court looked at everyone's arguments. [00:22:27] Speaker 03: It had everything in play there. [00:22:29] Speaker 03: It agreed with the agency there was an error earlier in the ALJ's decision, which implicated my opponent's theory of error. [00:22:37] Speaker 03: And the district court acknowledged that and said, clearly in the remand order, the agency should address claimants' arguments about the vocational expert's testimony. [00:22:47] Speaker 03: And it isn't exactly the same error here, because the first VE [00:22:53] Speaker 03: testified that when I think it was a he, asked about whether or not these broad categories involved individual job numbers. [00:23:05] Speaker 03: And that V said, I don't know, basically. [00:23:07] Speaker 03: It could and it could not. [00:23:09] Speaker 03: So we agreed to a remand. [00:23:11] Speaker 03: The agency looks at it again. [00:23:13] Speaker 03: The appeals council tells the ALJ, you know, look at this again. [00:23:17] Speaker 03: And it said on this, that record, it doesn't appear that substantial evidence supported the ALJ's decision. [00:23:22] Speaker 02: I mean, I guess what I'm concerned about is this. [00:23:25] Speaker 02: And again, you're the expert, I'm not, but I'm looking at how you have the, is it the review council or the appeals council? [00:23:31] Speaker 02: Appeals Council, they reviewed the ALJ's decision. [00:23:35] Speaker 02: They said, everything's scopacetic here. [00:23:37] Speaker 02: No, nothing to see. [00:23:39] Speaker 02: Let's move on. [00:23:40] Speaker 02: And it was only at that point that they had to appeal again. [00:23:44] Speaker 02: Isn't that right? [00:23:45] Speaker 03: That's the first time the agency, the Appeals Council, looked at it. [00:23:51] Speaker 03: They didn't find an error. [00:23:53] Speaker 03: Claim it comes into court. [00:23:54] Speaker 03: We all agree there's an error. [00:23:56] Speaker 03: Then it goes back, and the Appeals Council [00:23:59] Speaker 03: he didn't have to go back to the appeals council the second time around because once it hits a district court [00:24:03] Speaker 03: you don't have to go back to the appeals council before you end up in court. [00:24:06] Speaker 01: That's not correct. [00:24:07] Speaker 01: Is it your view that the ALJ on the remand fixed the error? [00:24:10] Speaker 03: Yes, and that was where I was getting to. [00:24:12] Speaker 03: And because the ALJ asked the VE specifically on page 692, because of the remand order, I'm asking you, is this number that you gave a specific dot number, or is it different jobs? [00:24:25] Speaker 03: And the VE testifies for like five pages between 692 and 699 about how [00:24:31] Speaker 03: her, the way she came up with those numbers, she's using the particular dot code as a representation of other occupations within that larger code that fit the parameters of the hypothetical limitations. [00:24:45] Speaker 03: So the, and what an ALJ is not, according to the Supreme Court in BSDAC, the ALJ is entitled to rely on that kind of evidence because it had [00:24:56] Speaker 03: markers of reliability. [00:25:00] Speaker 03: What's the other? [00:25:00] Speaker 01: So your position is that this broader group, although it's bigger than the specific job, still has the work requirements that the claimant could perform. [00:25:11] Speaker 01: Okay, you're opposing counsel's dispute set, though. [00:25:13] Speaker 01: I asked him that question. [00:25:14] Speaker 01: He says that's not true. [00:25:15] Speaker 03: Right. [00:25:16] Speaker 03: And that's why we're in litigation. [00:25:18] Speaker 03: But that doesn't mean that there's any abuse of discretion here. [00:25:20] Speaker 01: Right. [00:25:20] Speaker 01: Although, curiously, nobody's... Did this get briefed in the district court, this particular issue? [00:25:24] Speaker 01: Because it wasn't briefed here, at least from your side. [00:25:27] Speaker 03: Right. [00:25:27] Speaker 03: Because the issue is the remedy. [00:25:30] Speaker 03: It's whether or not the district court abused its discretion by remanding for further proceedings rather than payment of benefits. [00:25:37] Speaker 03: The only way you would get the alternative... He already got the remedy he's entitled to here, which is remand for further proceedings. [00:25:44] Speaker 03: the district court ordered the agency to address his problem with the vocational expert testimony. [00:25:49] Speaker 03: He is not entitled to a different remedy on this record. [00:25:53] Speaker 01: If you thought that the step five determination was fine, which I take as your position here, why not in the district court tell the judge, look, we have some concerns with other aspects of the [00:26:05] Speaker 01: ALJ's analysis, but those weren't appealed, and the step five analysis that the ALJ did is just fine, here's why, please just deny the claim. [00:26:15] Speaker 03: Because we said we don't agree with it, but you know, I call it a litigation strategy if you must, but we... I don't understand the strategy then, like if you don't agree with it, and you could just end the case rather than have it be remanded and now appealed. [00:26:30] Speaker 03: Because our theory of error would implicate that step five. [00:26:33] Speaker 03: It's not going to be the same RFC necessarily on remand. [00:26:38] Speaker 03: It could be if the ALJ explained that. [00:26:40] Speaker 01: So why not just treat it as essentially a harmless error to say, well, assuming the RFC decision is correct, so is the step five determination. [00:26:51] Speaker 03: There's too many things that could be different on remand for us to have done that. [00:26:54] Speaker 03: We said we didn't agree. [00:26:55] Speaker 03: We weren't required to do any further than that. [00:26:59] Speaker 03: The district court looked at our argument. [00:27:00] Speaker 03: The district court looked at Klayman's argument. [00:27:02] Speaker 03: and came to the conclusion that this case was not worthy of payment because there are outstanding issues. [00:27:09] Speaker 03: And there's no way around that. [00:27:11] Speaker 03: There are outstanding issues here. [00:27:12] Speaker 03: A claimant has to be disabled under the Social Security Act in order to be entitled to benefits. [00:27:19] Speaker 03: There is no medical proof here. [00:27:20] Speaker 03: There's no medical argument that he's disabled. [00:27:22] Speaker 03: And there is no contradictory vocational evidence [00:27:26] Speaker 03: that the ALJ was required to resolve as in white. [00:27:29] Speaker 01: But as a matter of just, you know, agency policy, if you get a case like this and you're looking at it and you see, all right, the RFC determination seems incorrect. [00:27:38] Speaker 01: I mean, benefits were denied, you know, but the RFC determination seems incorrect. [00:27:43] Speaker 01: And the step five analysis we think is correct, assuming the RFC analysis is correct. [00:27:48] Speaker 01: Is it agency policy to nonetheless ask for a remand so that the claimant can get another shot at the RFC? [00:27:54] Speaker 03: Your honor, if we found that the RFC was incorrect, we couldn't also say that the step five is correct. [00:28:00] Speaker 01: So you view them just as related, okay. [00:28:01] Speaker 03: On this record, with that RFC, it was supported, but we don't agree with that RFC. [00:28:07] Speaker 04: So what do you think was wrong with the RFC? [00:28:09] Speaker 03: That the LG didn't explain the reasons for the sit-stand option. [00:28:12] Speaker 03: He didn't provide the necessary analysis under our Social Security Ruling 96. [00:28:18] Speaker 04: And don't you think that was in [00:28:21] Speaker 03: plaintiffs favor not necessarily not necessarily and that that's one of the big things that RFC could have been more limiting it could be you know that the claimant needs [00:28:34] Speaker 03: less of an ability to stand and walk or something like that on remand. [00:28:39] Speaker 03: So that is an assumption that's not supported. [00:28:40] Speaker 04: Even though the claimant was not contesting that or saying that though, right? [00:28:45] Speaker 03: But we can't be forced to defend a decision that has elements to it that we know are not compliant with our policy. [00:28:56] Speaker 01: I mean, I guess there still is this methodological, I get your point, that if you have a different RFC, what the jobs are that we should be focused on in step five are going to change. [00:29:06] Speaker 01: The claimant seems to have just this position that methodologically, the way this is being done with groups is not okay. [00:29:14] Speaker 01: There's no proof of that. [00:29:16] Speaker 01: I understand your position there, but there's been no ruling on that by anybody, and that seems to be part of the claimant's frustration. [00:29:24] Speaker 03: Um, well, the first time around, we, we agreed with claimant that there was a step five error and then the agency tried to correct it. [00:29:33] Speaker 03: My opponent doesn't agree with that. [00:29:34] Speaker 03: That's fine. [00:29:34] Speaker 04: So, so can you let's pause there? [00:29:36] Speaker 04: Cause that's what I have been hoping to follow up on. [00:29:39] Speaker 04: You say. [00:29:40] Speaker 04: like around page six ninety seven i think you're saying is where it's corrected can you just walk me through cuz you didn't do this in your brief so i'm not i'm trying to read it and understand what you're saying about how it was fixed i don't think i see it but can you explain why you think it was so and at the bottom of page six uh... ninety three the a.l.t. [00:29:57] Speaker 03: says to the v this was an issue with the remand so let me ask you this with the numbers that you gave are those national numbers of jobs in the national economy do those relate to specific dot codes [00:30:09] Speaker 03: Or is there a grouping? [00:30:10] Speaker 03: And then the VE says the government doesn't provide information. [00:30:14] Speaker 03: It only does groups. [00:30:15] Speaker 03: And I've seen this in other cases where a VE will say there is no source anymore that just finds job numbers by a specific dot code. [00:30:27] Speaker 03: So the VE's explaining that, why she's using this grander. [00:30:30] Speaker 04: So far, that doesn't fix the problem, because that's exactly the problem they're saying is the problem. [00:30:34] Speaker 04: So where does it get fixed? [00:30:35] Speaker 03: Well then the ALJ, so, okay, so you can't, the VE's saying that I can't provide a specific dot code. [00:30:42] Speaker 03: So you can't, she's saying that she can't. [00:30:45] Speaker 02: It's impossible to do. [00:30:47] Speaker 02: It's impossible to do. [00:30:48] Speaker 03: That's what she said. [00:30:49] Speaker 03: The government only does groups. [00:30:51] Speaker 03: So then she says, the ALJ asks, follows up, well how do you extrapolate? [00:30:54] Speaker 03: The VE says, well I know that all the numbers I gave are light. [00:30:57] Speaker 03: So she takes the specific code, [00:31:00] Speaker 03: And then goes in with her own personal knowledge about what kind of, what occupations are under that umbrella SOC code. [00:31:07] Speaker 03: And then she says she takes out the ones that she knows are heavy and medium. [00:31:12] Speaker 03: She says that I believe on that same page. [00:31:16] Speaker 03: She picks the ones that are light, and then on page 695... Wait, sorry. [00:31:20] Speaker 04: You're saying it was on 693? [00:31:21] Speaker 03: She takes out the heavy and the... Well, she says on 694, I know that all the numbers I give are light. [00:31:29] Speaker 03: Then going down, she says there's 11 titles in the group, which is on the second last answer on 694. [00:31:39] Speaker 03: And then again, she says, I just picked the ones that were light and the ones that were [00:31:43] Speaker 03: information but the other ones would be appropriate as well. [00:31:47] Speaker 03: So she's explaining, you might not agree with the way she's explaining this, but she's providing an explanation which under Biestec in the Supreme Court is evidence the ALJ is entitled to rely on absent any evidence to the contrary and we don't have any contrary evidence here. [00:32:03] Speaker 03: The ALJ goes, or the V goes down to say that, or the ALJ says, so [00:32:08] Speaker 03: Information clerk, let's make sure I understand this, is part of a grouping, a total of 11 different occupations. [00:32:14] Speaker 03: All of those would be appropriate. [00:32:16] Speaker 03: The VE says yes. [00:32:17] Speaker 03: And then she goes down, the ALJ says, OK, I understand now. [00:32:21] Speaker 03: That's essentially the same with regard to the two. [00:32:23] Speaker 03: So if they had other titles within the group, you gave me would be a representative sampling of the titles in that group. [00:32:33] Speaker 03: And again, I understand that a reasonable person could look at this and disagree. [00:32:37] Speaker 03: But under Supreme Court law, under the law of this court, Ford says that ALGs are entitled to look to their testimony as reliable. [00:32:48] Speaker 03: And we don't have a contradictory presentation here that those aren't the right numbers. [00:32:56] Speaker 03: My opponent does go on to question the VE. [00:32:59] Speaker 03: And in his view, these numbers do still represent the larger [00:33:05] Speaker 03: SOC group instead of the individual ones. [00:33:08] Speaker 03: But that's cross-examination. [00:33:12] Speaker 03: That's not evidence that the ALJ could say, oh, this is contradictory to what my VE said. [00:33:19] Speaker 03: He was entitled to rely on what explanation the VE gave, absent being feeble on its face, as the court says in BSDEC. [00:33:29] Speaker 03: There isn't anything that contradicts it. [00:33:31] Speaker 03: And my opponent has said many times that there is some percentage of occupations out there that fit with the hypo. [00:33:36] Speaker 03: So how does that translate into he's entitled to benefits on this record just because the agency made a mistake twice? [00:33:43] Speaker 01: Can I ask you, let's just assume hypothetically that we were to agree with your position and say, well, now that we look at this, there really was no step five error, at least in the way that the claimant is arguing this kind of methodological error of grouping. [00:33:58] Speaker 01: Let's assume we agree with that. [00:34:00] Speaker 01: At that point, could we send the case back and direct the court to enter judgment for the commissioner? [00:34:07] Speaker 01: Or in your view, would it still actually need to be remanded? [00:34:09] Speaker 03: It would still need to be remanded. [00:34:11] Speaker 03: Because that error is, we are compelled to issue decisions that are policy compliant. [00:34:19] Speaker 03: And we agree that this one was not policy compliant. [00:34:23] Speaker 03: We have different reasons for why it wasn't, but that doesn't mean that [00:34:27] Speaker 03: the remedy in this case wasn't the appropriate remedy. [00:34:30] Speaker 04: You earlier in the argument referred to some policy that says this essentially that you have to redo the whole evaluation and make sure that it's all compliant every time. [00:34:39] Speaker 04: Is that in writing somewhere? [00:34:41] Speaker 03: It's in the HALIX. [00:34:42] Speaker 03: It's not because our, you know, we briefed this in terms of the remedy and the [00:34:47] Speaker 03: abuse of discretion so it's not in our brief but I could provide that for you if you'd like. [00:34:52] Speaker 04: I think that would be helpful if you could cite us to that because that isn't something at least I was aware of. [00:34:58] Speaker 01: Okay. [00:34:58] Speaker 01: Is the reason for that that just to the nature of these kinds of cases is that a person is developing you know they're they're in the time that we've had since the last ALJ there's some number of years in the person's health and physical limitations of change. [00:35:12] Speaker 03: Yes your honor that's correct they're not static and you know [00:35:17] Speaker 03: Yeah, the evidence can change on remand that would be in the favor of the claimant. [00:35:22] Speaker 03: Again, more impairments at step two, presumptive disability at step three, and the RFC and the sort of what we used to call it credibility finding, those are [00:35:32] Speaker 03: Findings in ALJ has to make, but they permeate the whole ALJ decision. [00:35:36] Speaker 03: So you can't just parse pieces of it out and say, on remand, what if the claimant went back to work? [00:35:41] Speaker 03: And that's step one. [00:35:43] Speaker 03: And that would be in the agency's favor. [00:35:45] Speaker 03: You can't get benefits if you're working. [00:35:47] Speaker 03: So there are all kinds of moving pieces for these cases. [00:35:51] Speaker 04: Isn't there a back in time element of this, though? [00:35:53] Speaker 04: Like, couldn't the person have been entitled to benefits for 10 years in between or something? [00:35:57] Speaker 04: I don't understand why it would go to the present, necessarily. [00:36:02] Speaker 03: Medical evidence is, I mean, you're right. [00:36:07] Speaker 03: Where that first, or the ALJ decision that's in question, there is a finite time there. [00:36:11] Speaker 03: But a lot of times we get medical records that go back, that we invade that period, so to speak, because there's more information for the ALJ to determine. [00:36:24] Speaker 03: And that could easily go in the claimant's favor, either at step two or step three. [00:36:31] Speaker 04: You're making arguments for why you should get another look at this. [00:36:34] Speaker 04: Is there ever an end to that? [00:36:38] Speaker 04: I mean, what stops the agency from just every time saying something wasn't perfect here, we need to do it again, and doing that for eternity? [00:36:47] Speaker 03: Well, Your Honor, again, the statute requires that the claimants prove disability with medical evidence. [00:36:55] Speaker 03: And your case law says, and I believe it's Strauss, no matter how egregious an ALJ's errors are, you still have to satisfy the statutory requirement. [00:37:03] Speaker 03: So, and I understand the frustration that, and I would like to think that as an agency we wouldn't do that at some point in some level of [00:37:12] Speaker 03: of quality control or whatever, we would find those errors. [00:37:15] Speaker 03: But to answer your question, if somebody is not meeting the statutory requirements, the court shouldn't be paying those people. [00:37:23] Speaker 03: And the Strauss cites a Seventh Circuit case that's called Briscoe where the district court had [00:37:31] Speaker 03: ruled in favor of the claimant finding benefits based on objurancy, because it was kind of that similar situation. [00:37:36] Speaker 03: It just felt like the agency's not getting this right. [00:37:39] Speaker 03: I'm going to stop this and award benefits. [00:37:40] Speaker 03: And the Seventh Circuit said, no, you can't do that. [00:37:45] Speaker 03: You have to satisfy the requirements of the act. [00:37:47] Speaker 03: And this court says that in Strauss. [00:37:49] Speaker 03: It says that in Brown Hunter, I believe. [00:37:51] Speaker 03: It says it in Leon. [00:37:54] Speaker 03: There's many cases in this court that say the same thing. [00:37:57] Speaker 03: And Strauss was a case where, [00:38:00] Speaker 03: the district court had remanded for payment because it said the agency didn't follow an appeals council order, which is what my opponent is saying here. [00:38:08] Speaker 03: And this court said, no, you can't do that. [00:38:10] Speaker 03: And that was about the same time period as we have here. [00:38:13] Speaker 03: It was about eight years from the application to the court proceedings. [00:38:17] Speaker 01: I was just looking at the ALJ decision. [00:38:21] Speaker 01: So there's jobs with some job titles with numbers, right? [00:38:28] Speaker 01: handbag frames inspectors 549,000. [00:38:30] Speaker 01: But I take it there's not 549,000 such jobs, that's the broader group? [00:38:37] Speaker 01: Yes. [00:38:37] Speaker 01: Okay, so does it matter what percentage of the 549,000 are this particular job, handbag frame inspector? [00:38:47] Speaker 03: Again, the ALJ was presented with that evidence without any contradiction. [00:38:54] Speaker 03: So whether or not it's accurate, I can't say. [00:38:57] Speaker 03: But what the record showed before this ALJ, he had the right to rely on that testimony as accurate. [00:39:02] Speaker 02: But don't we have to find out what the actual number is, not just these general numbers? [00:39:08] Speaker 03: Well, the VE tried to do that. [00:39:11] Speaker 03: And I understand that people disagree with that. [00:39:14] Speaker 03: The VE tried to do that here. [00:39:16] Speaker 03: What happens on remand now is that will. [00:39:18] Speaker 03: And I can assure you, if the agency finds, if the VE can't come up with numbers, then the claimant will be disabled under our rules. [00:39:27] Speaker 01: Did the VE give on this record an estimate to say, well, we don't know exactly, but I think maybe 5% of the 549,000? [00:39:34] Speaker 03: Well, you know, it's got to be some percentage of that, and that's a huge number. [00:39:38] Speaker 03: So, you know, to say that there's, that the agency has not been able to identify a single occupation is really not correct. [00:39:45] Speaker 01: Well, but that's where I guess it gets back to the issue of whether, if there's lots of jobs within the group that the claimant could perform, and Handbag Inspector is merely one of them, then one could say, you know. [00:39:58] Speaker 03: Well, the ALJ did say these are representative. [00:40:02] Speaker 04: That's you know that's what usually happens of the evil give three or four jobs that are I think you're opposing council made the argument I think that this category includes stone grader which Requires heavy exertion and so would not be the same and so said she was getting rid of the jobs that were not light and sedentary and So then what percentage was left? [00:40:23] Speaker 03: I don't know, but that's you know I [00:40:26] Speaker 03: There isn't a contrary finding there. [00:40:29] Speaker 03: And again, this is going back. [00:40:31] Speaker 03: So the agency can re-adjudicate this. [00:40:35] Speaker 01: But can I ask you just, so the first one was handbag frames inspectors 549,000. [00:40:39] Speaker 01: So is it the commissioner's position that this claimant could perform all 549,000 such jobs, including a handbag frame inspector? [00:40:50] Speaker 03: That's what the East testimony said. [00:40:52] Speaker 04: I thought no, because I thought you just said they took out stone grader. [00:40:58] Speaker 03: Oh, I see what you're saying. [00:40:59] Speaker 03: So then the East testimony is is there's some percentage of that that. [00:41:06] Speaker 01: Is Stonegrader within the 549? [00:41:08] Speaker 03: I don't know. [00:41:09] Speaker 03: I honestly don't know. [00:41:10] Speaker 03: I'm not a VE. [00:41:11] Speaker 03: I don't know how she got those numbers. [00:41:13] Speaker 01: But what does the record say about that? [00:41:15] Speaker 03: The record says that she's looking at... The record doesn't say that that 549,000 is the all total. [00:41:24] Speaker 03: And I think in that... There's one category where it's 782 different jobs. [00:41:29] Speaker 03: There's another one where it's 15,030. [00:41:32] Speaker 03: different occupations within that code. [00:41:34] Speaker 03: So I don't know. [00:41:35] Speaker 03: I know what my opponent says, but I don't know if that's true because that's not my expertise. [00:41:41] Speaker 03: And this VE was saying something that again had what the indicia of reliability, markers of reliability, sufficient indicia. [00:41:51] Speaker 03: It wasn't feeble and it wasn't contradicted on this record. [00:41:54] Speaker 03: So whatever the real number is, this ALJ was entitled to rely on that VE's testimony based on how this played out [00:42:02] Speaker 03: during the hearing. [00:42:03] Speaker 03: My opponent never presented the arguments that he's presenting in court to the agency so that the ALJ could resolve some conflict, as is what happened in Buck and in White. [00:42:14] Speaker 03: The claimant's attorney presented alternative job numbers. [00:42:16] Speaker 03: This court said, hey, those are so different. [00:42:19] Speaker 03: You ALJ have to go resolve this conflict. [00:42:22] Speaker 03: There isn't that alternative evidence here. [00:42:24] Speaker 03: There's a theory that the agency is doing something wrong with VE testimony. [00:42:31] Speaker 03: an idea that the numbers that the VE provided were too large, but that's not the same thing that requires an ALJ to specifically address that testimony and resolve any conflicts. [00:42:41] Speaker 03: There's nothing like that here. [00:42:43] Speaker 03: And the district court looked at all of this evidence. [00:42:46] Speaker 03: Again, what this court is- I'm sorry. [00:42:47] Speaker 03: I'm sorry. [00:42:47] Speaker 04: Can you just pause? [00:42:48] Speaker 04: What do you mean? [00:42:49] Speaker 04: What do you think is missing? [00:42:53] Speaker 04: They were arguing that this is too broad a category. [00:42:55] Speaker 04: You're making them the same mistake again, I think. [00:42:58] Speaker 03: Right? [00:42:58] Speaker 03: What's missing is for [00:43:01] Speaker 03: Again, this is a remedy case. [00:43:02] Speaker 03: Claim it's already getting a remand. [00:43:04] Speaker 03: The district court already said address your argument. [00:43:08] Speaker 03: What's missing is proof that there are not enough occupations that this claimant can provide. [00:43:14] Speaker 03: But at step five, that's the government's burden. [00:43:17] Speaker 03: And we presented evidence that my opponent disagrees with, but it was enough under Supreme Court law, under this court's law for the ALJ to have found was substantial. [00:43:29] Speaker 04: There is no but you don't want us to affirm on that basis because you think we can't. [00:43:36] Speaker 03: There's a different error and it's going back for that to be readdressed anyway so I mean. [00:43:43] Speaker 03: The court can find, like a district court, which is essentially the trial court, they can find any error they want in remand. [00:43:51] Speaker 03: You say that in Treichler. [00:43:53] Speaker 03: When a district court finds any error in the ALJ's decision, it either remands or it pays. [00:43:58] Speaker 03: This district court did exactly that and remanded for further proceedings because that was the only appropriate remedy here. [00:44:05] Speaker 03: This no matter what you think the okay. [00:44:07] Speaker 04: I think I think I think everyone's questions are Exhausted so I think I should have you stop because they're way over your time This was not an abuse of discretion. [00:44:16] Speaker 03: Thank you. [00:44:16] Speaker 04: Thank you. [00:44:17] Speaker 04: I said two minutes, but we took went so long Why don't we give you five minutes? [00:44:25] Speaker 00: Thank you honor if I may I just like to address a couple of points So it is clear from the evidence that the vocational expert in the 2020 [00:44:34] Speaker 00: 22 hearing did not reduce the gross job numbers for the number of occupations down to account for those occupations that might be within the claimants' RFC. [00:44:47] Speaker 00: She just rounded off from 549,200. [00:44:49] Speaker 00: She rounded that down to 549,000. [00:44:53] Speaker 00: She also [00:44:55] Speaker 00: She took a group of 194,360 jobs, rounded that down to 194,000. [00:45:01] Speaker 00: There is no way that she reduced that to account for the number of jobs within the claimants' RFC. [00:45:09] Speaker 00: That's the exact approach that the defendant teaches vocational experts to use in their training materials. [00:45:16] Speaker 00: We can look at all of these jobs. [00:45:19] Speaker 00: The first group had 782 occupations. [00:45:22] Speaker 00: The second group had 1,519 occupations, so we're looking at about 23 occupations. [00:45:28] Speaker 00: All of those are listed on the [00:45:33] Speaker 00: Department of Labor's website, their citations and web links inside my briefs, you can see what they are. [00:45:39] Speaker 00: And you can see that almost all of them are going to be outside Mr. Velazquez's RFC. [00:45:44] Speaker 00: So any argument that somehow these numbers were reduced to reflect the number of jobs that Mr. Velazquez could do, that argument is out the window. [00:45:52] Speaker 00: It's completely false. [00:45:54] Speaker 00: But that's the situation the commissioner has taught his vocational experts to use, and that's the process we're dealing with today. [00:46:01] Speaker 04: OK, so the government is arguing that you didn't really say that at the time so that ALJ wasn't confronted with the idea that the VE wasn't saying something that made sense? [00:46:15] Speaker 00: I asked the VE at the hearing regarding the handbag frame inspector, I'm like, [00:46:23] Speaker 00: So for that group, how many occupations are in that group? [00:46:26] Speaker 00: And she said, 782 occupations. [00:46:29] Speaker 00: And I believed that the ALJ at that point, knowing he was instructed not to rely on group numbers, I assumed that he would read the appeals council remand order to find that if the vocational expert can only give [00:46:48] Speaker 00: numbers for large numbers of occupations, he would find that the agency had not met its burden at step five. [00:46:59] Speaker 00: Surprisingly, the ALJ, I did not see this coming, just knowingly decided to violate the appeals council remand order and site groups for entire [00:47:09] Speaker 00: entire groups of jobs despite specific instructions not to do that. [00:47:13] Speaker 01: Before the ALJ, did your client file any kind of briefing on this methodological issue? [00:47:20] Speaker 00: Not that I recall. [00:47:25] Speaker 01: Why isn't the best course here just to... I know you're frustrated with the time it's taken, but why isn't the best course just to have the ALJ reconsider all of this? [00:47:35] Speaker 00: Oh, because we've already done that. [00:47:39] Speaker 00: We've already [00:47:40] Speaker 00: It's already been sent down for this reconsideration of this exact issue. [00:47:44] Speaker 01: And they just because you essentially want to have benefits, almost like a sanction for them not answering your argument. [00:47:50] Speaker 00: Uh, your honor, they're caught, they're caught in a web of their own weaving. [00:47:53] Speaker 00: They taught their vocational experts to use this, uh, use the system. [00:47:57] Speaker 04: And now there's now they're trying to disavow it and say, we never, I mean, I don't know why they didn't argue what they just argued to us today in their brief. [00:48:06] Speaker 04: This is a problem we have, but today they are saying, [00:48:10] Speaker 04: It's murkier than what you're saying. [00:48:12] Speaker 04: You're saying this is very obviously the same problem again. [00:48:15] Speaker 04: And looking at these pages around 694, I mean, I see why you're saying it's the same argument again, but I also see why she's saying it's murkier. [00:48:23] Speaker 04: Because it does seem like the VE tried to say, I tried to account for this. [00:48:28] Speaker 04: And then you're telling us now, when the VE said, I was trying to account for this, that you didn't very clearly say to the ALJ, this is the same problem again. [00:48:36] Speaker 04: And so I'm not quite sure now [00:48:39] Speaker 04: how we can say they just did the exact same thing again as you'd like us to when maybe they didn't. [00:48:46] Speaker 04: It's a slight variation on the same thing again. [00:48:48] Speaker 04: Or maybe not even the same thing again. [00:48:52] Speaker 04: They've made a related error, but they thought they were doing something maybe that was not the same error. [00:48:58] Speaker 00: Sure. [00:48:59] Speaker 00: And I think it's a little late. [00:49:02] Speaker 00: It's a little late in the game for the commissioner to start raising a defense at this late date, three years into the litigation. [00:49:10] Speaker 00: But I think the point is that the commissioner's attorney quite multiple times said that Mr. Velazquez has not established his entitlement to benefits. [00:49:20] Speaker 00: Mr. Velazquez's obligation is to meet the requirements of steps one through four. [00:49:26] Speaker 00: At step five, it turns to the commissioner's burden. [00:49:31] Speaker 00: And she's saying Mr. Velazquez has not met the commissioner's burden, but that's not Mr. Velazquez's burden. [00:49:36] Speaker 04: And what is your response to this idea that there is a policy that every time they look at a case they have to start up from scratch? [00:49:46] Speaker 00: That is the preference of all government agencies to be able to do things without regard for judicial oversight or with regard to specific instructions from the court. [00:50:00] Speaker 00: That's obviously not permissible. [00:50:05] Speaker 00: And any government agency can write a policy manual saying, we don't like to follow court remand instructions. [00:50:12] Speaker 00: it does not. [00:50:13] Speaker 01: As a practical matter though when these things get sent back down to an ALJ haven't some of the circumstances changed with the claimant that might actually even be helpful for the claimant to show listen you know in the last several years things have actually gotten worse for me and I want to now put that in front of the ALJ. [00:50:31] Speaker 00: In practice [00:50:33] Speaker 00: Once things get remanded by the court, even if the court gives very specific instructions, the ALJ says, well, it's our policy not to follow the specific instructions because the appeals council decided to vacate this decision. [00:50:49] Speaker 00: We're just going to hold the de novo hearing. [00:50:51] Speaker 00: A perfect example of that, the last time Ms. [00:50:53] Speaker 00: Ferrier and I appeared before this court three years ago arguing White v. Kijikaze. [00:50:59] Speaker 00: The court in that case said, [00:51:01] Speaker 01: on remand, remand is required to allow the ALJ to... But I mean, in this case, if it turns out that your client's condition has gotten seriously worse in the last two to three years, are you saying that you shouldn't be allowed to tell the ALJ that? [00:51:16] Speaker 01: I mean, why would you want that rule? [00:51:18] Speaker 00: Oh, well, if he's entitled to benefits now, that wouldn't be necessary. [00:51:23] Speaker 00: But there has to be some sort of [00:51:27] Speaker 00: into the litigation instead of just continually remanning for the better part of a decade to address step five issues. [00:51:36] Speaker 00: And the reason they can't do this is because they're, again, caught in the web of their own weaving. [00:51:43] Speaker 01: I feel like I'm caught in the web myself. [00:51:51] Speaker 04: I don't think we have more questions, so we will try to figure out how to get out of this web. [00:51:54] Speaker 04: Thank you both sides for the arguments. [00:51:57] Speaker 04: This case is submitted.