court lawrence rolfing on behalf of scott holding court issued an order directing the parties to address itself to the ending maybe versus berryhill decided in the aug twenty second still pending on a request for the discussion of whether a vocational expert testimony that has a facial conflict with the occupation all we can book with respect to the numbers of jobs is waived for failing to bring it up failure of counsel to bring that issue before the l j the critical difference between mr sze b s case and mr holden's case is that mr holden was not represented in attorney he was represented macleod and macleod the claimant was able to bring in v a information late because he was represented by a non attorney representative and in choudhry mr choudhry was not able to bring in late v a information because he was represented by an attorney this is the this is the the pattern that we have in the circuit of of not allowed not fixating waiver when the claim represented by a non attorney and there are some really good reasons why waiver should not apply the not attorney representatives are not they didn't take evidence they don't didn't take civil procedure they don't understand waiver they don't understand they they're not trained in the nuances of when issues must be brought up and as long as the agency allows non attorney representatives to represent claimants before the agency then that is that places an extra burden on the to be a little bit more careful to pay attention a little bit more and to exercise that duty to fully and fairly develop the record and the record in this case is the administrative regulations require the agency to take administrative notice of the occupational work handbook and the vocational expert's testimony has a direct facial conflict with the occupational acan book in the  not resolve it and should have a code of federal regulations says the commissioner will take notice of these things but is that a one way street because the question here is a little bit collateral to what your argument has been and that is whether there is a civil sponsoring obligation on the part of the commissioner to do this as opposed to the fact that the commission commissioner will do this when the commissioner sees fit well th the word is will not may and not shall and garner and and his style guides has said that people that write statutes and regulations should get away from shall because shall is a little bit slippery i will get up and argue the case that if i still sat in the chair you asked me to get off my seat and come up and argue the case will is mandatory language the commissioner will take administrative notice is there a conflict then between the code of federal regulations and case law that suggests that there is not he sues montana duty on the part of the commissioner well the case that says there's not a suicide bomb take a duty on the part of the commissioner is say b versus berryhill  shy b is pending on a request for a hearing in bank and request rehearing by the panel and the court has issued an order in the commissioner is supposed to respond it's got an extension it's now due in december to whether the agency whether whether this court should treat the evidence that comes in from the occupational outlook handbook and county business patterns different than it treats an attack on vocational expert testimony that comes in from the d o t the law of the circuit is is very clear that he claimant can come into district court and say this this will case like her testimony that conflicts with the dictionary occupational titles in the ale she didn't resolve that conflict for the first time not to the appeals council member for them day but in federal in district court for the first time but when we get here it's too late but they can and so the question is if the commissioner has a list of five things th t county business patterns census report other reports by states and the occupational like handbook is there a difference is there a linguistic difference in will take administrative notice between the d request for him hung so yes i there are parts of show you be that are troubling one of them is the duty to cross examine the vocational expert there's a duty if waiver attaches then there's a duty to present contrary evidence but i don't think there should be a duty to cross examine but the fundamental core of shady and the basis for the request for hearing and back is that the concept of administrative notice when the agency says we will take administrative notice of these documents of these publications it puts the public on notice that the agency is going to wrap itself around those publications and that data and it's up to the claimant for benefits to come in with evidence to rebut the administratively noticed data and that's in the administrative procedures act it's in does it say anywhere in the not break down job numbers by d o t code but we do in the occupational handbook points to the own at and the owner it says this occupational group of production workers all other contains one thousand five hundred ninety separate d o t codes and if we look at the d o t and compare them to that list we'd find that fifty two of them are sedentary and unskilled three hundred in four hundred fifty two of them are light and unskilled policies how does that document stand for the proposition that the l a l j must notice the h because zero zero four p does not have the weight of was zero zero four p is interpretation of paragraph d one of the regulations my position with respect to mr holden's position with respect to d five is that zero zero four p tells us how the agency considers d one how the the agency should consider how this court should in the absence of an agency interpretation of the five this court should say the way that you interpret d one we're going to hold your feet to the fire and interpret d five and d two in the same exact china i think the distinction between the attorney and monetarily representative allows this court to proceed even though she hasn't been finalized but prudence would would suggest that that the court wait and we have a  distinction if a b survives intact as currently constituted in the federal reporter then the only distinction that mr holden can cling to is the attorney non attorney distinction the representational status says at least when the claimant is represented by an attorney waiver attaches and so meenal does not conflict with chowder in the kitchen dream a cloud distinction of all meenal meanwhile does not preclude the choudhry macleod distinction that the non attorney representative does not waive because they're not trained so but would we still look i'm trying to figure out  based on what you just said right now would we still look at it in terms of manifest injustice i don't think we have to get the manifest injustice i think we get to the point that that the agency should not allow non attorney representatives to practice before the agency and then attach waiver when we don't have any adequate assurance that these non attorney representatives had the education training and experience understand the concepts of waiver and how cases get tried they don't have the expertise and the claimant population is the victim in that situation it's i'm not so how would that finish then for me how this would resolve then if it's a non attorney representative i feel like we're kind of going in circles i think the the the colonel rule of law would be where the claimant is not represented by an attorney  the claimant is relieved of the obligation to raise all issues concerning administrative notice before the l g a and may bring them to the court for the first time exactly the same issue of job numbers if you don't raise it to the agency you waive it so then we get into the representation well the representative here has a degree in neuropsychology he's actually trained as a vocational expert and as a certified rehabilitation counselor you can get that information from page one fifty one one fifty two in the record which has his his letterhead if you go to his website he says he used to work for the agency this is a non attorney representing who's a vocational trained did not find this to be an issue either before the l j or in his letter to the appeals counsel and the second thing is if you look at page one thirty in the record which is the representation of counsel or acknowledgment of representation letter there's a box check there that says mr macaskill the non attorney rep is authorized to get direct payment from the agency when that happens he has to be he has to go through a series of tests and maintain education and liability insurance the same way as an attorney and the reason the agency does that is to treat these people essentially the same way as attorneys so he must have an undergraduate degree take a test that the agency has created he has to do seely's he has to undergo a background check and have liability insurance that was a public law one eleven dash one forty two which amended the social security act in two thousand and ten and the regulations four hundred four seven hundred seventeen seven hundred forty seven hundred forty five the talk about the obligations of responsibility is a none attorney rep who is eligible for direct payment gets so this representative was not the same as the lay representative in macleod who we have no information on but i would not call an eligible non attorney representative the same thing as a lay representative and both she and mean all state council so so  there should be should there be three different standards here then for like a non represented person someone appearing pro se someone with a non lawyer representative and then moyer represent have what was last when he said i'm sorry someone who's represented by counsel i think that the eligible not attorney wraps and that's what the regulations how they refer to them those people should be treated the same as attorneys especially for an issue like this because  ruffing was talking about being trained in understanding case law and waiver issues and how a case would play out in litigation but that's not what these people are hired to do they're hired to represent the claimants before the agency and the agency ensures that eligible non representatives are trained in disability law and regulations and that kind of thing so what we have here is a case where this should be waiver it should be clear waiver under mino it respective of what happens and shy and  there is no manifest injustice here given this issue this is not an attorney eligible representative who is trained as a vocational expert did not find any problem with the job numbers the identified here which makes that substantial evidence that the elder was allowed to rely on it stays the same then you argue that there's still a waiver here yes absolutely and i think so i don't know if you want me to get into the other issues about this this regulation that it's kind of the catalyst for all this for a four fifteen sixty six well there's a subsection that mr often does not ever reference at subsection e and subsection he talks about the complex case where a v e is necessary ve testimony is necessary and after all the talk about administrative notice of the publications a talk about job numbers which the agencies position is that that talks about the grid that's when the l g doesn't need a vocational expert is going to rely on the grid subsection use of vocational experts or other specialists if the issue is determining whether you're disabled is whether your work skills can be used in other words in the specific occupations in which they be can be used or there's a similar similarly complex issue in the use the services of a vocational expert that's what supposed to assess limitations they're supposed to understand the kinds of requirements of a job which is why the agency issued zero zero four p c to talk about requirements of a job job numbers have no expertise and which is why they called occasional experts there's a very big difference in the kind of evidence that those subsections talk about so if you do not have any further questions we say that under me no waiver is still applicable here if a court would like to wait for she be we're fine with that have you one minute this fear and i disagree vehemently about just one thing not attorney representatives are not counsel counsel or attorneys that's the way we all understand the word that's the way the word was used in mean all and it's and it's in the commissioner's brief left in my out of there but it says counsel counsel doesn't include not attorney representatives in there and we have no evidence of what the regulations say in terms of or with the test tests or whether there is with the educational strata is for non attorneys in terms of waiver waiver is not an agency doctrine waiver is a court doctrine ok thank you thank you