spine under the longshore act and is intitled to benefits he has an extensive orthopedic injury history including fusions to his cervical spine fusion surgery is to his lumbar spine to shoulder surgeries and bilateral total knee replacements the overarching question before the court today is whether taking into consideration all of these conditions the employer has shown that there are jobs available to mr cole the roots all of that he can do this is a somewhat unusual case in that there are both factual and legal issues on appeal and of the factual issues there are multiple reasons her soul and i understand that there are reasons to reverse the decision because a factual error are it's a higher standard than a legal error but because this case is unusual in that regard that's where i'd like to start so i'm going to plan the daffs through the factual issues and then dive into the legal issues time permitting but of course your honors given that i only have ten minutes here if there is a point that you would most like me to address i'd be very happy to  in regard to the factual issues perhaps the most striking and frankly a little bit strange is that mr caller rua tolo testified that he could not do the tower clerk job the tower clerk job that is the job of the held that he could do now he said there were two reasons that he could not do it and this was based on his experience from having tried to do it before the injury because his condition was already such before the injury that he found it to be too painful he had two reasons one his back and to his neck the l j in repeatedly citing his testimony about his back and his neck actually took out the word neck substituting in a lipsius such that in looking at the tower clerk position and why it had hurt him to do it before he only considered the back what is the remind me the what's the problem with the neck that the  cause your honor the problem is that he has a cervical spine fusion so it's vertebrae are fused together there are two monitors that he has to look at for the ten hour shift one has the pictures of things like the license plates in the container numbers the other is a monitor the us to enter all the information into so for it's an eighty percent active shift so there's twenty percent spread out downtime throughout the day and so for eighty percent of these ten hours just seems strange that the argument is that he would have to turn his neck i mean it just had to sit for most of the day despite the vocational expert's testimony to the contrary counsel i was puzzled about the tower court position because he testified that this would nearly double the salary if you took that position now that would that was based on five days a week is that correct double up from an almost seventy thousand two hundred thirty thousand dollars a year when increases is pension as well so it looks like it might be a very desirable job yes your honor in fact i believe the testimony is that it's one of the most desirable on the waterfront because it's so accommodating that had to do with him switching unions so he was a member of the longshoreman's union local thirteen and in order for him to do that work he'd have to become a member of the clerks union local sixty three this was slated to happen a month after his injury and so the change of the union would have been accompanied by the increase in salary but if it come with increased availability of that of the position as well he switched unions is not necessarily his union it could be the mechanics you know the carpenters union if it happens to be to be available and if it happens to go to a must some extent there was some testimony i understand you challenge it but there was some testimony tha it would be available basically on a three three day a week basis questionable whether four or five three days a week would be available that wasn't a guarantee it was pretty sure that's in the record isn't  think what we would defer to an eight to an agency factfinder to two to make those kinds of factual judgments based on the evidence that's before them we give deference to that under the scope of review yes yes your honor and there are two reasons though that the day's decision does not meet those standards here one of them is to take a step back to the issue of the l g not addressing his neck pain with looking back and forth between still work or what my understanding your honor in the record doesn't delve into this too deeply is that you can pull a pension and yes in return you sacrifice your ability to pull jobs from the board no it means retiring from work then yes so you call it retiring from the union but it's really retiring from work so if you retire what's the theory about why we are saying about whether you can go back to work that's what i'm and just don't understand the scheme that's going on here so your honor to back up for a moment i may have misspoken it's not necessarily retiring from work altogether someone can retire from the union for example there's a case that was just decided by the fourth circuit it's  moody versus huntington angles there's a similar issue pending before this court in a case that's christie i don't i'm not asking about a sec now i'm wondering what retired from the union means yes your honor in those cases into whether retiring from the whatever they say is very high over mark moody holds that no retiring from the union is not necessarily retiring from work as a whole there can still be a wage loss after retirement and so i'm not sure what that means so if you retire from the union which i don't know what that means that it doesn't mean you leave the union doesn't mean you're no longer a union member and i believe that it does your honor but the record really doesn't   to these aspects of medical retirement you rely in part on the fact that he's retired from the union and i love the way the ability of him to do this work but the but you really can't explain how that works status or that he can't physically i don't know what it means as well if it means that he can't meet the requirements of of the statutory scheme then that's the end of the case but it can't mean that you're on or it's  something that you technically do under the union when you start paying dues and you start drawing a pension and and you know do that and still work not through the union so he's indicated he doesn't want to work anymore and the issue is just whether if he did want to work this job would be available to him is that right so we don't really need to worry about whether his neck hurts it's just an abstract question about whether he could be assigned to work there or whether we could contemplate that he could work there in order to decide whether he gets a certain amount of money while he's not working because he's not going work either way is that what's going on here right your honor because he's medically retired as a practical matter that job is not available to so what right but what i'm saying is that says that he can't actually do the job but under the statute we have to see whether there's a job that would be available to him if he wasn't retired from working example we're supposed to do exactly and it's some sort of an abstract inquiry i mean really he's not really going to have to go in and try to do this three days a week is that right or wrong i don't understand why he can't go in and do it three days a week but i would i would argue your honor this court should adopt a legal test where and if a claimant takes medical retirement and flips that switches such that they can no longer take jobs through the union and they make that decision because a work related injury and their reasonable believe that they can no longer work that's binding then that should change the labor market because here we had a judge who determined that he could no longer work before changing his mind we had a benefits review board administrative appeals judge who dissented if you can't it can't be right on her made it is he can't be right under the scheme that he can say that of the person who says i'm entitled to the spend if it the one that we're reviewing the administration decision as to whether he gets to spend a foot or not that he can determine he can cause the determination to be yes you get the benefit here in l a and then move to montana as long as that move is justified and reasonable and not for a fraudulent purpose then that's right but can he move to retired status and then say i can't i can't work because i'm retired to montana from los angeles so it isn't that but i mean that if you don't like sort of a self help provision that is that i'm going to change the legal landscape by retiring and by retiring and not being available to work i'm going to make it i'm going to make my case or down ought to be before he retired before he made that decision and he made that decision knowing that he had lost before the benefit review board i understand there was a dissenting member but it seems it seems high risk to go and say well i'll take my chances on getting on this getting reversed on appeal but that is i think the risk that he takes i don't think he gets to say why now retired you could never return to that job so please don't affirm because i can't go back and work now there are going to feel like it feels like a little self help and made the decision so i think the question is is the job available was he suitable for a vote for the for the work that may or may not have been available to your honor's i see that i'm well past my time going to give you a couple of minutes for about court first and foremost sean i'd like to just address the retirement in the evidence this case would reflect that the claimant retired on october first two thousand and eleven what's interesting about that date is he was already in the process of litigation here and he knew that wage loss benefits were applicable in this case and if he retired for all intents and purposes he was really eradicating any residual wage earning capacity so he had an economic gain i don't want to say that was his motive clearly he did have an economic gain but what's interesting in this particular case is the administrative a little lower judge who heard the case who made all of the credibility of factual determinations he found that the claimants medical condition reached permanent stationary status on august ninth two thousand and eleven so that's maximum medical improvement so august ninth two thousand and eleven predates october first two thousand and eleven the administrative law judge at that time found she could return to work he could work as a tower clerk and that the job was available to him three days per week and that's sort of on the hypothetical assumption that he's not retired so you can't work and be retired at the same time i understood that but please recognize at the time of the trial the administrative inquiry that we're asking here i was so it's all so my question your answer to my question before is this isn't this is an abstract question we have to ask could he work and if he did would he have work three days a week but nobody's actually expecting the deliver do that is that right or not i will acknowledge since he retired once he retires he gives his book back to the union hall so that he can be dispatched to the  i'm not sure that's from my question ok so can he win if if we decide this one way or the other is i can affect whether he actually goes to work or whether he could go to work if he had retired those are two different questions i'm just curious to know what we're deciding here donna are we deciding an abstract way you could do that you could say if you were retired could you do this job and that determines how many benefits you get or we can say you can do this job and we actually think we're actually deciding whether already knew he retired and still made that decision he could return to work so doesn't that just suggest then that this is the question of retirement is really irrelevant to what's before the court today and all we really have to decide is whether the ael j affirmed by the board is correct i believe that the it's a straight up question yes i do look at events right it's seems to me that there's that there's a couple of questions here one is the question of suitability that is could he really do the job in the tower and the other is the question of availability that is did stop   the claimant thing and if all of this is based not on what stopper knew about the availability of the job but what he thought the claimant had sad and seems like he's on pretty weak ground as to how many days a week you can actually get this job when you're on i believe this is stated with specificity that he could do the job three days a week now clearly said that with specificity but what's the basis for his opinion while he spoke to the claimant the claim deposition that every prita of mr starr he really didn't delve into that information so this is information that could have been developed at the time of trial and it wasn't developed and you know what's interesting is that the claimant is coming before this court and he's trying to challenge factual determinations by the administrative law judge credibility determinations by the administrative law judge well what's interesting is he does have a remedy if the claimant perceives permanently and totally disabled he could pursue with section twenty two modification claim that would allow him to the new hearing in front of the ministry of lower judge present new evidence and establishes permanently and totally disabled for the life of me i cannot figure out why the claimant did not pursue that route  say i walked i walked the docks for you know two weeks for a month and talk to the union of folks and i got and here's that and here's and here's the here's the day by day account of how many jobs would be available rotolo would of would have qualified on the first week for four days the second week for three days of the third week for three days it looks like at least three days a week he would be able to get employment there that's  not testifying about anything that he knows independently he's saying well i talked to mr kohler rule tolo and he told me that he either used it might be available three days a week so i believe that that's that's not really expert testimony well i  understand your on him but in addition to his discussions with the claimant he also had discussions with the union clerks he also had discussions with other terminal manager i don't see any of that reflected in his in his testimony oh it isn't his testimony and it's all it's in the excerpt records it's also in the excerpt records in his labor market survey and also in his job analysis that he did a vocational assessment of the claimant at that point in time he interviewed him and at that point time he states the information that he relied upon to support the tower clerk position as being available to mystical diseases at some point that that was his preferred job i think at one point that was mentioned but then at another point i think mr kohler torah said otherwise because the problem with the tower clerk position is it pays forty three dollars an hour twelve hundred dollars over a ten hour work shift so if you look at the fact that this is a wage loss claim that job is most damaging to him because it impacts his residual wage earning capacity so it brings down the value of his claim so what i believe in the course of litigation altered his opinions to now say oh i can't do that job because i have a bad back you know it's fishy to know the tower cleared position it's a sedentary thing to so there is a basis for the l j to  statement that this was his preferred job he's been though there's other evidence that it was not his preferred you'll see easiest job on the waterfront it's purely a sedentary position yes or no question i believe yes ok what is your response to the argument that your opponent has made this morning about the neck issues preclude him from being able to do the job certainly he sits at a desk ergonomic ergonomically he considers stand he has a chair he could rotate the chair there's two monitors and he looks at the monitors and he inputs information what's interesting is he works with computers he work with computers at the time of the injury he has a computer at home and he built three computers it's like that it entry work a simple job and also he does the inputs a container number a chassis number and a license plate number ok but you heard your opponent's argument about the lateral rotation yeah i mean right that this is what caused the problem in that he testified that having done the job and obviously being very familiar with what it requires over a ten hour period that it just because excruciating pain such that he could not do the job on a regular basis my belief that job entails a minimal lateral rotation minimal flexion and extension of the head well and basically your move your belief is utterly irrelevant now i guess i'm asking what do we have on the record that contradicts the argument we heard this morning while the record that we have is how rehabilitation expert found that that's a job that was in the work restrictions of dr nagle there treating doctor and doctor london the expert retained on behalf of the s s a the administrative law judge you heard all of the evidence and reviewed all of the medical reports well it's interesting to note that neither of the two doctors said that he could not do that job they gave work restrictions no heavy lifting no repetitive lateral rotation and the restriction there into the record but the restrictions did not three days and i'd be spec right but that goes to availability and i'm talking about the suitability or your ability to do the job and i'm what i'm asking i guess is isn't it isn't your opponent right that the l j never addressed head on in explaining why i that he could still do the job notwithstanding the need to i believe he did your honor there was a lot of testimony to that effect in the john talking about to say that he did that in his first opinion instead of his second opinion he did do it in this first opinion and he said he could return to work affected the date of maxim medical where in the first opinion can you give me the cite or was i i definitely miss th ok on page twenty six of the excerpt of records volume  the judge says therefore of the jobs employer identified i conclude the claimant is mentally capable of performing only the tower clerk position which he has done pre injury and which can be modified to accommodate his physical limitations excerpt records twenty six by you want i thought you were going to find some specific reference to the next or at least two specific i'm not saying that's necessary but i thought not he addresses address the sitting and standing on page on the are twenty five and sort of looking at your honor yeah that's where the ellipses is that's why i'm i guess that's what has bothered me in your opponent has fired that this morning i wonder what her response was because they all just focus on the back right but just taken out from that quote the neck concerns but the claimant express experts the physical limitations limited range of motion increase neck pain i mean at least he's at least commenting about it in the right pieces but he mentions neck pain in that first paragraph under the title physical and mental capabilities the very next paragraph is whe i would agree with that seems just a little odd doesn't it well judge price had the benefit of hearing all the testimony reviewing all the medical records reviewing the deposition transcript  starr and these were the decisions that he received and again these are factual credibility determinations that really shouldn't be a part of claimants claim before this court what about on page twenty five it says employer identified several mechanisms by which the physical demands of the position may be modified to accompany him with with with reference to the excerpts to those excerpts  page yes i see identified mechanisms that would help i would think if that included help to the next day and that's also in how it stoppers job analysis and his labor market survey he goes into with specificity what that job entails and that's in the excerpt of records i'm talking about physical demands being modified well the position it does allow him to sit and would just follow it to the extent that we can maybe infer that perhaps the l g had been considering the knack in regard to the tower clerk position to that doesn't suffice under the a p a which says that he need not the website thank you the l j he a he undermined any such inference when he stated quote at the hearing claimants only objection to the tower clerk position was the amount of time he would have to sit this complaint is cured by the ability to alter his sitting and standing at will thus the only objection the a l j was considering was the sitting issue for whatever reason he omitted entirely five seconds on the on the fourth circuit standard the fourth circuit has held that a labor market cannot be evidence by the production of only one job here we have the production of only one job in fact one job which is extremely popular on the waterfront and which the vocational expert admitted repeatedly that the availability of it is back to the speculation of it kind of drives home the fourth circuit's point that where there's one job it's too much to assume that the claimant would be able to take that job as i say has argued and today that in fact the claim did prefer the tower clerk work but swap his testimony in order to maximize his benefits if that's true if he really did prefer that work then his job history would evidence how often he was able to get it and that shows he didn't get it at all so if as as i say argues that was his preferred position that undermines the jobs availability the fourth circuit has a clean rule to show jobs that are available which is the standard that the ni j made and the assumptions in regard to what he can and can't do despite color rotolo having said that he cannot do this job don't agree with those credibility findings and the a l j did not explain how it is that th