right and our fourth case for this morning chavez against acting commissioner barry hill court my name is randall forbes i represent the disability claimant i've decided to go old school since i'm going to go back and forth give them my age and use paper today rather than my computer  mechanical you know here's a big category and will divide it by the number of smaller categories it encompasses and assume equal numbers when there's no no data for that at all that that strikes me as a terrible methodology but in the real world you know what kinds of things you think of vocational expert could say to justify the allocation of jobs you know from a called the roman numeral one category and which go into capital a capital b capital c and so on up to maybe capital e what do they say they say in my practice i don't see any of the a jobs anymore but i see a lot of the b s or what did he say we deal with this clumsy data that we seem to have in the system so whose job is to make sure that the data is not clumsy it is not the disability claimants job they don't have the burden by the job it is the united states government who is at the top of the most this is the catered economy in the world and economy that depends on top notch economic data and this problem has been known for a good to know decades and they said they were going to fix  almost ten years ago and they have not our clients the disability claim is have the burden and want on step one two three and four if we come in and say we couldn't find  evidence we don't have the evidence or the evidence doesn't exist or the method is unreliable we lose on one to four yeah that's correct mr forbes yes you set the facts of this case aside for a second yes can you hypothesize a case where the application of the equal distribution method would be proper in your view just make one only if of the had extensive knowledge of every single job in the s o c standard occupational classification category are other objective studies out there in relation to these jobs that show that the equal distribution is proper so in other words you mean i think what you're saying i have this or similar question i'm reluctant for the court to go down a path that seems impossible you know but on the other hand if i'll give you an extreme example where maybe you would be able to say is relied on using facts modems and nobody even knows what they are anymore maybe you would say well there just aren't any jobs left in that category that's that's something th technology just moved on it's the horse and buggy job and so we're going to say we're not going to use equal distribution because we can at least rule out one or two jobs that the economy simply doesn't have any more it's going to be hard a lot of the time with our independent in revival statistical studies at the level is granular as this seems to need to be it will be difficult but we don't have any confidence that the numbers are accurate i have to tell my clients if they lose they say a lot about these numbers and i have to tell them those are really not real numbers and i hate to use this word given the context experience in jobs placement in what job job placement if they run like employment agencies or something like a place yeah or the professors a note about job browser pro or the skill method and they said yes proprietary yeah it's got to be meaningfully reviewed by the court they can't be secret so if we're talking policy that's the next round of cases that are coming up w this whole thing is based on as you point out not much that's well i'm not going to disagree with you your arm so i think your point i think i want to make sure i understand your your answer to that just can you come up with a hypothetical i think your point is and don't let me put words in your mouth ok i think your point is i'm not asking you to just wholesale get rid of the equal distribution method it might be a starting point but it's at that point that the vocational expert has to pick it up and articulate based upon some knowledge of the applicable labor market employment market wide job sufficiently exist in a particular category is that a fair summary almost they can't just say based on my experience order talking to others like it was done in this case they barely got a point to objective studies for example let's say a university did in objective study on on standard occupational classification oh this case can be decided on the the big major policy ground which will put claimants all over the country or at least in this work it in the driver seat but it will also provide social security finally and insanity in conjunction with the bureau of the part of the department of labor get this thing cleaned up this case can also be decided for my flame and for the the vocational experts said were inaccurate but occasional expert said that job browser pro is inaccurate and that the one he used was inaccurate and so we have a knowledge of two inaccurate methods here and no finding of reliable so thank you god thank you mr forbes mr jenki say coming at it from the outside is this court has said in the past it going to take my simple solution if there's a broad category from the bureau of labor statistics and we know that it encompasses five jobs or no reason at all t think that they're going to be twenty percent twenty percent twenty percent twenty percent twenty percent it's just that there's no reason and if the burden as mr forbes accurately says is on the commission or it's step five i mean you know you've won all these other cases you put the burden on the applicant but now you would step five i would think that you could start with local experience to justify what that percentage division is  vocational expert's been running an employment agency in southern air northern indiana for a few years they may say you know we used to have a lot of jobs in the steel making industry but we don't really have those jobs anymore but what we do have disease or other jobs maybe you could you could come up with something better than just can you divide by five i mean that just doesn't mean anything well you're wrong or that the vocational expert actually did give a little bit more here he finds one number which frankly i'm not even sure he's right about that because my guess is a huge number of venture assembler jobs are now done by robots so it so i really don't know me and i'm not making a judgement about the eight hundred but to go from eight hundred is too low to dividing by five more lastin equal distribution assumption you're positing that there are two and only two options one equal distribution two job browser plus and i'm suggesting that there must be at least a third one which is local experience that's why you hire these people they're supposed to come in and tell you something about the actual jobs first of all in the region perhaps even all the way out to the country there's literature and so i think it's a false choice if you say it's just equal distribution first is job browser plus well and you're is taking those methods that this one particular is taking the equal distribution method and i can get up there and say i'm a vocational expert and do that and i've never run an employment agency you know he's not applying his and the in thinking seven o two which i know doesn't apply directly but it doesn't mean that there are zero standards for these people he's not applying his expertise to the problem in front of him which is one of the critical things that you have an expert to do we would argue that sixty nine he makes the statement i just think it's almost logical that there are more bench assemblers in the national economy than eight hundred he's not at least in the transcript he's not drawing upon experience in talking of occupational titles there is those who are those who outdated their upright and in this case we're dealing with three occupations that the opponent has not even argued are somehow obsolete or anything of that nature we see that this court sees an argument a lot and sometimes that might really  lot and in this case these three jobs i mean we're talking about what i mean we see these cases on appeal this whole thing this whole idea of vocational experts seems to me be ridiculous there's no basis they have no educational qualifications i never see anything  seems to speak to the reliability of the of the equal distribution method is in that first full paragraph on page twenty four and what i worry about is there's nothing there that articulate why the method is reliable and i'm concerned that the analysis is one that effectively shifts the burden to the claimant to explain why it's not live my opinion point us to that that's all we have right  right but earlier the expert explains that on page twenty three of twenty four the l j states that he book ational expert acknowledge that no one has gone out and counted the exact numbers for the numbers are collected through surveys in the location expert also explained in this test doesn't mean the methods reliable right it's an estimate it is an imperfect method there is no there's no argument about that here but this court has found that imperfection does not necessarily mean if they i'm sorry as opposed to working in a hotel right right it could it can fill a number of different employers there and so we have here again no i don't you know i point this court liskov it's case in which in that case the vocational expert was unable to come up with exactly how many jobs were part time as as opposed to full time and this court said recognize that that information doesn't exist they were going to hold locational experts and the agency to an impossible standard and in some of the cases that opponents cited i keep pushing back on that i don't see why it's impossible if somebody is actually a person with the the experience or the academic background to be a vocational expert to say that at least within the scope of my expertise you know thirty percent of the jobs are part time and seventy percent are full time or whatever they say otherwise you know we might as well just go grab people off the federal plaza and say you know hey  a vocational expert today the expert explained in this case that that even if you know the opponent won some to have base it on some sort of survey by an institution or and university of some sort we're not sure what that is this expert even explain the problem with with surveys in his testimony that no that's not based on perfect data briefly i mean and he made it sound as though the only thing he could do was either do equal distribution or do job pro and i am saying that it's simply not the case well and i would point this out to this court as well that again there has been concern about this methodology in previous cases that's why it's not new to the commissioner it's a little frustrating  the system is not perfect but this court has found that it does not have to be perfect in order to be deemed reliable ok thank you thank you very much mr forbes and you can further think you have about half a minute  the government has the burden and the government has the ability to prepare and produce evidence and it's almost black letter  law in believe me i can't cite it i haven't read it in thirty years but i know it's in there or that who has the burden loses we should win this case thank you your honor all right thank you very much m