case the administrative law judges on medical expert dr barnes an initially offered testimony as to the residual functional capacity that was based exclusively on the objective evidence and we know this because and dr byrne said no however on cross examination when asked about biz tech subjective symptoms barnes continues to concede that subbed such symptoms are possible or reasonable in particular barn stated that have rather extensive treatment there were no issues of noncompliance in the file and he received only temporary benefit to the to the type of treatment that was provided and significantly when i asked about the statement that this tech needed to lie down between eight and ten hours of a day and whether such such treatment or ers such subjective symptoms were were reasonable to alleviate the back in dr burns stated that it would be reasonable however in reviewing the administrative law judges decision nowhere does the administrative law judge explain the fact that combination of the objective evidence and the subjective testimony that such such combination between the two is reasonable and when looking at twenty c f r four or four one five two nine which is the regulation assesses subjective plain compare claim pain complaints it looks to the reasonability of of that evidence between the subjective and objective testimony so in this case we have doctor going i am on the one end who did offer differing testimony as to listing but stated that the subjective evidence was reasonable and dr burns who on cross examination likewise conceded that the subjective testimony when he was confronted with it was reasonable and one area in terms of the subjective testimony that he did want to touch on that i think might have been overlooked in the in the district court below was this need to lie down and i just highlighted dr burns well when i offered the statement  and to ten hours a day to alleviate pain from the lower back said yes it's reasonable but likewise biz tech testified it is initial hearing and his remit and hearing to the need to lie down throughout the work day this is at the record at p id eighty two and page id forty six through forty seven and in at least three objective records search reference to those text need to lie down throughout the work day i'm sorry lie down throughout the day or put a pillow in between his legs to alleviate the back pain that's at five thirty eight it's at five fifty and at seven o four dr going to i am when asked about the subjective testimony of the need to lie down and nine sixty four so that was consistent with the pathology and reasonable and doctor right based techs on treat or put in the residual functional capacity that he completed on the first page that the need to lie down would alleviate back pain at the record in one nine hundred sixty two and why this is significant isn't in the judges decision it is entirely devoid of any reference to the need to lie down it's not mentioned when summarizing the medical opinions it's not summarized when addressing his tech subjective testimony so in this case there's could undermine the commissioner's conclusion and in that case the facts are different but the court found that the combination of lay testimony and medical evidence may establish evidence of disabling pain so it's b contention that that the administrative law judge here erred in failing to ignore or address an entire line of evidence that's consistent with bits tax claim of disabling pain and the administrative law judge under the case law that exist was was required to minimally articulate her reason for either ignoring it or rejecting it which she failed to do in this matter so now turning to the vocational expert testimony the vocational expert significantly did testify to the fact that she was asked about off task and stated that an individual who was off task would need to remain at the workstation throughout the workday so considering the fact that that multiple different traders and biz tech has reported the need to lie down and the vocational experts stated that there would be no accommodation to lying down the vocational experts testimony likewise is consistent with a finding a disability in this case  but turning to the vocational he says he would not be able to lie down during these procedures so the vocational to her was asked on cross examination and there was some questions as to off task behavior there was no question as to lying down she stated that there would be a twenty percent off task ten percent off task would be for a schedule of work absences such as the lunch break or the two fifteen minute breaks typically provided in unskilled work environments and the rate remaining ten percent off task an individual would have to be sitting at their workstation they couldn't get up and move away from the work station they just would be losing concentration or not performing as to perform standards so i think it's implied in the testimony that this individual wouldn't be able to be lying down or doing is stretches throughout the workday but as to cross examination and that the foundation of the vocational experts testimony as i think the brief show there's no supreme court case on the issue of of cross examination of vocational expert opinions and what's what's required but i think the supreme court case of richardson prowess should be instructive in this case it dealt with the issues of the administrative procedure act versus the social security act and stated that they didn't think that the two varied much it with regard to cross examination and that in terms of cross examination a party should have the ability to do it in order to elicit a full and true disclosure of the facts so in this case it's our contention that the biz tech to not obtain a full and true disclosure of the facts that the vocational expert was using and that the administrative law judge then used to to rule against mistake in this matter so i think at the briefs both i think both parties can agree that the rules of evidence in this matter don't strictly apply those are the cases that are out of the seventh circuit that address donahue versus mr and mckinney those cases however the administrative law judge needs some evidentiary basis to rely on the vocational expert testimony if you look at social security year old zero zero dash for p addressing vocational expert evidence it talks about reliability and the reliability of what the vocational expert is using to to offer testimony the fact that an expert is an expert alone should not justify unfettered reliance on such an opinion and i think that's the case in the facts that exist in biz tech and that's where the bottom line of the whole cast vocational expert testimony was questioned the representative did not stipulate to the credentials of the vocational expert  the vocational expert makes clear that she's not relying on any publication to which his tech could go out and then obtain that record she's not relying upon any evidence to which the administration  burden shifts that to the commissioner to establish that jobs exist and the national economy at that someone with biz tax limitations could do based on reliable methods so in this case all we have is a vocational expert saying i have eleven years of experience i have reports you can't see them and i think that differs from the cases that were cited out of the second second circuit and the cases in the supplemental for each those are cases where first of all a vocational expert the representative stipulated to the qualifications so said whatever follows is true is essentially true but also the vocational expert there was relying on publications like that occupations in point employment quarterly which is something that the administration takes in ministry of notice of and it was a question as to methodology that the representative and the vocational expert were questioning were battling over the methodology of how the numbers were reached and this case there's there's no methodology because there no foundation for where this is coming from other than you must accept what i'm saying is true and i think further the vocational expert at the end it's addressed that the dictionary of occupational titles is obsolete and the vocational expert states yet are concedes at the end of her testimony that that the definition for bench assembler for example it doesn't exist the way that the dictionary of occupational titles described it but those jobs still exist so she's not confused about the us so that again at the end of the testimony of the representative ass would you agree that the dictionary by capacious titles hasn't been updated since one thousand six seventy one and she says yes and she says that that that the definition that's listed in the dictionary of i q titles might not be the same but these jobs are still out there so even under social security i would i would submit that that's that's a conflict between between the dictionary of occupational titles in the book vocational experts testimony and the administrative law judge accepted that as true old based on her experience and based on these confidential well i mean under the regulation treating physicians are supposed to be given afforded controlling way it on my ass their opinions are internally inconsistent or they differ from the subject substantial evidence in the file so in this case dr wright's findings and his residual functional capacity is consistent with that of dr can i am and if you accept dr burns's testimony after confronted with subjective complaints with a treating treating physician does it can consider both the objective and subjective in treating an individual then you can argue that barnes is testimony is likewise consistent with dr wright's test of our i'm sorry source statement as well  but right goes into detail of all the treatments that this tech has tried and failed and he justifies his residual functional capacity based in part and the object of findings and based in part on the subject q because there's a lot to get into i'm just going to follow counsel's lead and try to address the arguments that she's focused on specifically with regard to the argument about dr barnes not considering the subjective complaints and the limitation for elevating legs or lying down i would note that the context is very important here dr barnes it acknowledged mr biz tex report that lying down with his legs elevated would quote make him more comfortable and that's page eight hundred seventy three and that his reports of pain were both possible and reasonable but under the commissioner's regulations the residual functional capacity is the most that an individual can do despite his limitations so in crafting the r f c assessment it was more relevant for the l j to consider dr barnes opinions as to what mr biz take actually could do then what would make him most comfortable and dr barnes did give a residual functional capacity assessment that was essentially consistent with the ail jase and it did not include the restrictions that counsel asked about during the hearing turning to the vocational expert testimony as i understand it mr biz tech's argument is essentially that vocational experts should be required to back up their knowledge and experience with hard data before elegies can rely on their testimony now this court hasn't squarely addressed the proposed rule but your prior decisions do provide a roadmap for you to decide that level of scrutiny is not required this court has previously held that elegies are free to rely on a vocational expert litigation into a expert's body of experience but there are ways to test the reliability of an expert's methodology inclusions without actually requiring her to turn over her personal files just a few examples counsel could have asked how many employers have you done these surveys for did you personally visit the job sites how many employees did you observe doing jobs with the specific limitations we're talking about did you keep track of the time that the employee was off task did you prepare a written report that documents these findings could you produce a copy if you had to do you don't think you should get the same in we don't know your honor that's not this case because counsel tried several times to just get the documents without showing any sort of predicate or need for them and decided that that wasn't good enough and wouldn't require document production but depending on the answers to questions like that the l m the claimant might be satisfied that there is sufficient foundation or conversely the cross examination could raise serious questions about whether the expert had a reliable basis for her testimony those are just a few examples of questions that might trigger further inquiry and none of them require upfront production of the experts personal files mr business counsel again did not ask those types of questions his argument both at the hearing and in the post hearing submissions  was essentially that the l g couldn't rely on mr callaghan's testimony because there was no way to verify that she had actually done the job analyses and labor market surveys that she said she had done  so here mr business counsel actually did have ample opportunity to cross examine mr callahan and to make his case that the l g a shouldn't rely on her testimony he just didn't ask those types of questions as outlined in the commissioner's brief counsel repeatedly stated that mr callahan should be required to turn over her files and she said that they were confidential now the l g did not require production but did give counsel latitude to continue questioning mr callahan and she stopped him only because another claimant was waiting for a hearing feel gypped was she stopped the questioning because there was another claimant waiting for a hearing the hearing had run had run long at that point the l g offered to schedule a supplemental hearing and counsel declined in this is that page eighty nine forty nine forty one well i mean i don't need to continue the hearing at this point i mean i just you need some additional information and we're going to get some information i could give you closing comments and closing letter a closing memo business council actually submitted three posts here in letters addressing the vocational expert testimony and his own vocational expert opinion from lean nuts and in an attempt to  tech would be able would not be able to do three of the jobs that were discussed at the hearing but all three of those jobs proved to be non factors because the ala jay found that mr biz tech could do different jobs based on different limitations and mr not seeing did not address the two sedentary jobs that ms o'callahan had identified as suitable at the hearing i also know that to support his own vocational opinion mr knotts and offered his resume nothing else taken together the post hearing submissions and the questions at the hearing show that this was essentially a fishing expedition mr biz tech asked for documents to back up the experts testimony but never explained even in the post hearing submissions what he hoped to find in that data or how he planned to use it to undermine misalliance testimony in other words mr business is suggesting that vocational expert should be required to do what no other experts are required to do in social security cases and that's to put all of their experience into writing so that claimants can pick through it for flaws this court doesn't need to go that far to ensure that vocational expert testimony is not conjured out of whole knowledge and experience so mr district actually cited brawl in his reply brief for the proposition that vocational expert testimony must have foundational support but brawl and later cases cited in the rule twenty e j letter that i submitted actually hold that the experts knowledge and experience are the foundational support and showing that their testimony is conjured out of whole cloth requires more than just demanding documents with the vague hope that there might be something in there to trip up the brawl the expert testimony was sufficiently tested were counsel cross examined him about his process and submitted a post here in a brief argument the methodology was flawed in mcintyre versus cold in the second circuit held that the elegy could rely on the experts professional experience and clinical judgment where it was quote not undermined by any evidence in the record and again mr biz tech hasn't pointed to anything that undermines missa callahan's testimony about the availability of sedentary benches someone sort of jobs he simply arguing that the needed to corroborate her testimony to make sure it wasn't fabricated so what he's looking for isn't foundation which mr callahan provided by identifying her sources he's seeking proof that those sources actually exist and that's what brings us back to this court's decision in barker when the issue is whether the vocational expert is credible as a witness than the l g has broad discretion to decide whether or not to believe her for a factually similar case i would avoid this court to look at duke  university the second circuit decision cited in the rule twenty eight year letter in that case the vocational expert said that he relied on labor market surveys that were confidential and then he couldn't release them and that's what happened here and just like here the l g a did not require their production the claimants attorney argued error and applying a brawl the court said that the vocational expert was not required to identify the sources with any greater specificity nor was he required to turn over the confidential files so to kind of summarize the commissioner's point this court should follow broths reasoning in the second circuit because brawled does support the position that vocational expert testimony can't be conjured out of whole cloth the parties don't dispute does not support the on demand production rule that mr biz tech proposes instead of endorses a case by case review for substantial evidence and substantial evidence in this context comes down to this was testimony such relevant evidence as the reason the mind might accept is adequate to support a conclusion and here it was reasonable for the l g to accept mr callahan sworn testimony about the bill ability of sedentary benches somewhere in sordid jobs when mr failed to provide any argument or evidence of those jobs were not available and his only real objection was that she couldn't be taken at her word that was the call to make and she made that call only after giving mr biz tech numerous opportunities to be heard so  well first i want to touch on the second circuit case is the the issue that was noted in the supplemental authority because i think that those cases are distinct from that this case in brault the vocational experts stipulated to the credentials and brought the representative never asked for the data and materials at the hearing and in brault the individual the representative only reads the issues of donahue and mckinney up at the appellate court so there was an issue as to whether those arguments were waved at the district court below in do get out of the second circuit that came out of brault while it was a confidential study the district court case explains that it was based on fifty eight vocational consultants who had had come together and based on the dictionary of occupational titles conducted a survey specifically for the bureau of labor statistics which is a publication to which the administration takes notice of so this is clearly something that the representative could have contacted the bureau of labor statistics for if they wanted to obtain that material i do think in the hearing transcript the advent of the representative makes  two points at the record in one thirty six the attorney says well i'm asking how she what she has to support the testimony since there's no publication apparently there's no article there's no theory and then again he states with respect to the confidentiality you can take out the names it's the stubs substance of these reports that i'm looking for at the record at nine thirty seven so he does he does go further in the in the hearing transcript then just say give me the reports he's saying give me some foundation to the which the vocational expert i mean and the administrative law judge continues to state i've noted your objection and continues on with your line of questioning or continues on letting him question but not get the foundation the testimony to which the vocational expert asking and finally what the commissioner is saying is is that we in any case should just accept the vocational expert at their word unless the representative or or the claimant provides some alternative evidence as to the vocational expert's theory first of all that shifting the burden back on to the plaintiff or the claimant it step five which is contrary to the regulations but if you look at the case that had a versus a file which is what social security roll zero zero dash four p came from they specifically say that they are trying to avoid such a scenario because it would create a satellite litigation where it would put the onus back on the claim and in order to continue to establish that this vocational experts testimony is incorrect richardson versus prowess specifically states that this should be an understandable for a layman's terms so  if an individual is hearing confidential and based on my experience it's should trigger some sort of of of line of questioning from the administrate of water we're not asking for the methodology we're not asking for the reports to be disclosed but at least some sort of line of questioning that should have been conducted as to the substance behind what the volitional experts testifying to when you deal when you just to still through all of th e are you saying that the only way the ale j could have found that he had received you will capacity that fit with work was to find that he only had to be on tests eighty percent of the time i'm saying that the the vocational expert has deviated from the dictionary occupational titles it's not in the dictionary of i q that's not in the dictionary off tasks it stand up sion or the cane and then her later testimony is that even the description is not practiced a bunch assembly but those jobs still exist busy can hypothetically do the jobs the book the administrative law judge finds if the administrative law judge accepts the fact that these jobs exist absent deviation from the dictionary and no recognized publication and i finally would note that it was noted that the book ational expert that the representative used only submitted his resume and that's all that's in the file with respect to the vocational expert that testified at this hearing as well there was no probing into her her experience as well you have a thing of oh i thank you very much