good morning ladies and gentlemen welcome to the th circuit judges beatty and i welcome our colling judge to cerro from the th circuit thank you for sitting with us i don't know if the weather's better or worse but it it's  a nice time to do your holiday shopping here similar it's a little quieter there just a few housekeeping matters as to how i handle the calendar i will call the cases in the order that they're on the calendar next to your designation you have a time that has been allowed to your case and i will basically keep you to the time if you are the appellant your time next includes any rebuttal time that you wish to reserve as well so if you're at the apollo and you're responsible for keeping track of your time however if you tell me when you come to the podium aspirational ie how much time you would like to reserve for rebuttal i'm looking right at the clock so i'll try to remind you even though as advocates i and we respect this you think that the time is saw yours we think it's all ours and so if if the time clock has is is out and you are in the middle of answering a question from the court please continue to answer that question and if my colleagues have additional questions that would be the reason that we would go into overtime because i want to make sure since we have to decide your case i want to make sure that all of our questions are answered prior to submitting the case the clock counts down and then it goes up and when it starts going up that doesn't mean i gave you extra time it means you've moved into overtime the st matter on calendar perform despite her adverse medical careful profile the pertinent parts of the adverse medical profile she's loaded to sedentary work which is a lot of jobs well if she had a representative but not a at the hearing and the representative had quite an impressive resume and so since we're at step five and there weren't any objections entered here and now why should we allow your client to challenge the vocational experts testimony on appeal when she was represented before the agency by an individual who holds himself out as a social security expert and who qualifies under the social security act i mean any time you know it's just pretty simple on appeal if you don't bring it up and if she had been pro se would she be able to bring it up here and then if she has an expert and so then you're asking us simply to you know you can hypothetically raise all those things but you in this case already and my review went back one time already right correct for the earlier steps no for the same stuff ok you have this and so now there's no objection she has that expert and now out of left field you want to raise things that never got a chance to address right well th former vocational expert was the reasoning level one what kind of are these jobs reasoning level and reasonable to in the l j address that invocation expert said well simple one and two steps are unskilled or it's all the same thing to me and that's not a non presidential unpublished opinion from this court suggests that the waiver rules are different when we're talking about harmless error as opposed to error in the st instance which was what shall you be was talking about was  attack the male gaze numbers decision frontally without without having the lever of having knocked out two thirds ok identify dr jones i mean let's just take this so i'm taking you that you're not aware of any published cases where the court has entertained arguments not advanced by an on attorney representative before the court you have no published case that there are no published case well right now the only published case is that address this particular issue  representative or macleod which allowed the claimant to to introduce v a evidence in court for the st time because the claimant was not represented by an attorney and choudhry where the claimant tried to do the same thing but was represented by an attorney in this court said no it's waived because you were represented by counsel there's a difference right so those cases address the j's duty to make sure that the record is factually developed and in those cases the court noted that the duty to do so is heightened in a sense when the claimant is not represented but that's different from the circumstance we have here where our court's precedent says that the day can rely on the vocational expert's testimony that the vocational experts qualifications provide the foundation for that testimony and that testimony is in fact substantial evidence so we have a circumstance where the j is entitle to rely on that testimony and so is building the factual record for review but there's no objection to any of it data right because there was nothing in the record to to permit the court or the majority of the supreme court that to permit the court to infer that there was anything wrong with a vocational expert's testimony but that in this hearing here so before the a l j there was no objection whatsoever to any of this testimony there was no argument there was no counter evidence presented they l j following our precedent was allowed to rely on that evidence a substantial evidence for job numbers then for the st time on appeal at the district court counsel comes forward with an interpretation of documents that he asked a district court to take  is that not a classic waiver it's not waiver because the l j still has a duty the other has a duty of production at step five and the algae still has a duty to defoliate unfairly develop the record the occupation outlook handbook which is the primary source that we're relying on before in the district court and here is on the list of administrative notice now is four thousand and four p says the d o t is important everything else is  not so much important but under if we if we look at four p under the prism of kaiser versus wilkie that interpretation of the administrative notice regulation has to go away it doesn't survive kaiser it doesn't survive kaiser because it creates a hierarchy that the regulation doesn't even imply even if you the sections that you make are not necessarily that assumptions that you put on the l j we don't know what the advance what what evidence would you seek what residents would you have us as a matter of law pronounce has to be entered that the occupation how look as as a source of  is that the equal distribution method is fatally flawed and when the vocational expert doesn't know you equal just four we even get there we don't even know that that's in the thread that was used because there was no testimony or evidence before the l j the appropriate fact finder as to the methodology the vocational expert a point and the the a l j was not required to to elicit that testimony and nobody objected to it or cross examine the expert or attempted to establish that the methodology was flawed the only basis for us to can conclude that the methodology was flawed is counsel's argument on appeal there's no evidence in the administrative record for us to rely upon so we just make it up out of whole cloth and then decide that because she wasn't represented by an attorney we were manned it to the a l j but if she had an attorney we wouldn't so we create in effect a class of cases where there's an automatic remained as long as you lie in the weeds you have a qualified not attorney representative you don't object to the vocational expert testimony and then objected to the st time at the district court i mean essentially that's what you're asking us to create although this court doesn't create any distinction all when it comes to d o t or with with when the claimant doesn't raise ocational experts testimony and the d o t in our case less clear that the a n c is required to do that but not with other sources in this course st presidential address of the of the administrative notice issue is terry versus sullivan and terry said that relying on the commission of the sector in that case the commissioner's own resources is a reasonable way to defeat vocational expert testimony and terry is the st articulation on the subject and terry we need to reconcile the administrative notice regulation with terry terry said that there the commissioners on resources we're going to look at it and we're going to we're going to remain in this case because the vocational expert has failed to consider the distinction between skilled and semi skilled work in this case the occupational look handbook identifies all three occupational groups production workers fillers and packers as requiring moderate term on the job training and i access him that we get to pass the waiver but how do we treat the vocational experts testimony that in addition to the jobs referenced by the l j the also exists at four hundred and eighty nine thousand eight hundred jobs as an auto table worker and the national economy eroded by sixty percent eroded by sixty percent because of standing but we address the that on page thirty one of  she was fully adopting the case an expert's testimony which would include the table workers and also when she did listed the employment she said such as it wasn't exhaustive so why is that particular job excluded because it requires inspectors testers sorters samplers and where it's required moderate term on the job training that is the typical way in which inspectors are performed in the national economy that's not my oath that's not my opinion that's the occupation ministrative notice that's what the administrative notice regulation says and one of occasional expert departs wildly from matters subject to administrative known as the court shouldn't affirm because b stick says that the proper role of the vocational expert is to take their local experience and extrapolate to the national economy by a reliable methodology and when i can go to the occupation employment statistics and boom all three of the occupational groups are represented by the full number of jobs were cited by the vocational expert that isn't substantial evidence no one believes that there are two hundred thousand hearing before an administrative law judge they have no idea what the vocational experts going to say but ninety said that they don't have to be prepared with different numbers all they have to do is just raise it in some fashion just raise a question about it to preserve it well there was they he did raise the issue of wanting to step instructions the distinctions of all and rounds versus commissioner raise and so he did raise some issue as to the substantiality of how did your client end up with the non lawyer representative issa suppressions she retained in selected what i mean is that the client's choice it's not somebody who's assigned to them that the claimant decides if they want to retain a lawyer or somebody else i think the record is clear volitionally hired mr macaskill that it was her decision there's nothing in the regulations that directs claimants to any particular person it's a very competitive field filled with non attorneys and attorney representatives and we have an individual who is limited to one and two step instructions and and given her minimal faculties for complex decisions she hired dr  process as our attorneys the act and the regulations and the commissioner sub regulatory promulgated ins make no distinction in terms of fees to attorneys or not attorney representatives in fact i think it would be a fair assumption  given the retainer agreement that's in this record that dr mccaskill is retained in the same financial terms as would any lawyer representing claimants before the agency so just i'm still giving you a minute on rebuttal but just just so that i understand if if she had had a lawyer she'd be damned it be waived should be filing a practice lawsuit well by and it would be a way that you can see that the pretty clear on that i think she is and main or clear ok and the non attorney representatives are required to carry liability insurance as well so she has a claim potentially under your theory that  lawyer she could sue the not attorney representative i don't know at the standard of care would be but certainly ok we'll see you back shortly thank you thank you address what we're talking about so it's the commissioners position that waiver or forfeiture rules should apply to this case although show you be involved the representative who is an attorney the non attorney representative representing the claimant in this case had lots of experience he had lots of experience in the very issue that's being presented to this court which is vocational in nature what's the law if she had represented herself and and it happened exactly the same would she be able to raise that for the st time on appeal my understanding would be yes there's a heightened duty of care that what is there a specific case has been a lot of things we we still we  jumps to mind your honor it's more flexible for say is people representing themselves again i think it's because the o j has a heightened duty of care in those situations and so you don't want to have someone who is on represented at the hearing necessarily disadvantage later on if not all issues were raised so we don't have that situation here the situation that's presented there's no case done exactly on this type of person you however if we're looking to the principles i think that underpin shy in cases like shady like meenal it's the fact that we don't want someone who's representing themselves at a hearing necessarily being disadvantaged earlier on if the issues aren't fully developed at the hearing unaware of any cases with that specific designation making a distinction or a similarity between those two but i think this court could extend to situations involving these particular class of representatives it's not have a special obligation to introduce evidence of this type even if it isn't raised vocational you mean in nature so the only obligation that's on the commissioner is to support a finding of significant numbers of claimant can do and so we have that burden that burden was satisfied here by the introduction of testimony from the vocational expert so that's once that once that evidence has been introduced into the record the word aggregation of data of the census well under bayless the vocational expert testimony alone without supporting documentation is substantial evidence and of course the the problem i think this court has identified here is that there were no there was no questions posed to vocational expert to question that that the substantiality of that testimony occasional keep st argument i think is that the vocational expert job numbers are overbroad because they exactly match the numbers that the vocational expert came up with say particularly with the final somebody's job wasn't the similar number it was actually a lower number so we don't have that similarity and we don't have evidence and the record showing that the vocational expert actually relied on those source materials for the testimony and again that's getting back to the major problem here is that if there are questions about what sources did the vocational expert used to derive these numbers that should have been developed at the hearing so what we do have that the hearing is the vocational expert saying that he had relied on his experience and expertise in doing work for employers and i think surveys or something to that effect so that's that's what we have is the evidentiary basis for the vocational expert's testimony the fact that counsel has after the fact and for the st time in federal court kind of mind these online resources for contrary information doesn't validate that information and i'm actually unsure whether mr offerings calculations are even correct or if the representation representations are correct or if the math is correct i agree that he's done some computations that have with certain inputs have resulted in a certain and figure but we really don't know if that's accurate because it's not confirmed by any kind of vocational expert oh is that it was ever good for you so the case you  would speculation or testimony that there are so many one hundred thousand jobs a dance hall hostess positions we lable i mean it just defies any imagination that there are even that many dance holes in america so the various case to which you're referring i don't believe that kay survive b because it's st autumn published case but then j p comes out later and the the question of kind of like the plausibility of these job numbers came out in shady and so in that case the the jobs that were talked about is particularly at the hearing where these tobacco leaf tire jobs and so the numbers presented there were five thousand california i think forty eight thousand in the nation and so just most eyeglasses coming of correct correct but we don't know what the i don't i mean i personally don't know what the eyeglass business is in the california but again this about the prevalence of these jobs in the country in a particular state against a b judge prison during the hearing i think actually called a leave tire jobs is perceived as being silly but that did not prevent the show you the court from applying the forfeiture rules  in the case where even you know after the fact this could be an interesting argument but she said this is really what needs to be addressed at the hearing because the court is not a fact finder now i guess is  position that the question that i asked you at the vocational to raise these issues that vocational expert should have been asked at the hearing and part of the l j well ok if you've testified to these numbers  but i noticed that your number six ackley matched bureau of labor statistics of may two thousand and fourteen on occupational group reports is art is that correct and then the vocational expert would be there said situation correct because the issue would have been broached at the administrative hearing and i think tech goes into this somewhat in describing that it's again you don't have to have a lot of information on hand on that basis as there is now how would that have been addressed well at the administrative level the question would have been asked and answered and then at that point how would it have been answered oh why i don't i mean that's all speculation at this point i don't know how the vocational expert would have answered the question but the point is that the question if it had been answered could have been explored at that time and states if that's the appropriate time to be asking these questions to develop the record well let's assume that let's just assume that we say it wasn't waived please tell me how i would write an have the burden step five right so if if you if the issue isn't waived the evidence that vocational expert testimony is still substantial evidence based on bayliss because that location expert does not need to justify  the testimony was underlying pin data the testimony alone is substantial evidence if the claimant comes after the fact with a different interpretation right now we all we have the speculation that those numbers are even that the alternative numbers prove up that there is a reason to question the occasional experts existing testimony and b s tech i would say supports that as well the fact that the vocational expert testimony at the hearing alone can constitute substantial evidence even without a underlying basis so i want to go back to the waiver issue for a moment judge cal and ask you some questions about what should be the rule with a pro se claima and i wasn't clear on your answer are there any circumstances in the commissioner's view where a pro se claimant can waive an issue if they don't raise it before they say well sure there are circumstances that could happen i'm not saying that's an absolute preclusion to apply a waiver of forfeiture when a claimant is represented but i think that the court is definitely more lenient in those situations so it's not an absolute  to the same standard as represented like against that if they choose to represent himself in court for whatever reason they don't have to abide by the rules and all i can see is a carve out for an issue with respect  duty to develop the record but i haven't seen any other citation any authority that suggests that outside of that context a pro se litigant doesn't waive issues that they don't race before they again your honor i can't i can't think of a published case that's coming to mind i know i can say that courts have applied a waiver to or forfeiture to a situation or claim it was pro se and again i think it goes back to  representation was someone who's like a doctor mccaskill's caliber who has been certified by the agency to be an expert in social security give especially given the substantial questions about adequacy of evidence that would remain if there is honor the reason that we treat unrepresented claimants differently is because for a four or five g sentence six says that new material evidence can come in and an unrepresented claimant has good cause i didn't know the judge didn't develop the record and they represent a claim and doesn't have that excuse and so that's the foundation for treating pro ses differently than represented claimants and that extends  under all of the cases that preceded the cloud that talked about the heightened duty where the claimant is is two factors that are important the heightened exist when the climate is unrepresented and also when the claimant suffers from a mental impairment you know of any cases the distinguish between counselled and specially counseled cases there is no case that actually addresses that because macleod didn't address