figure out to please a court my name is charles talbot i represent daniel very the main issue in the case is whether or not the ministry of law judge in the second hearing in this case interpreted this court remained decision from september of two thousand and ten correctly our position is that he read it too narrowly even a straight of law judge went through a statutory analysis to determine whether or not varies opiate drug medications would prevent him returning to his past work as a commercial courier driver however that's not what this course said what this court said is we agree with very if a drug prescription disqualifies a claimant from performing his past relevant work he's not capable of returning to that work when we went to the hearing in this case  the judge focused on whether or not there was a statutory barrier to very returning to his work as a courier driver and we expected that the vocational expert at the hearing w acknowledged that she was familiar with the roles of a commercial drug when you say the judge a focus on whether there was a statutory varia was that the step for step five he is doing  really the r f c type part which we do before the step four and five we don't get into step four or step five until we determine what the cape claim is capable of doing once you get past a three which is the presumptive disability rule we then get in to determine what the claimant can bring to the work site and in the licensing requirement of commercial drivers was something that was argued extensively before this court in the first decision but it wouldn't that just be harmless error because when you look at what the administrative law judge did it and then going on to step five isn't it of no consequence really what you're talking about at that point because at step four even though the administrative law judge made certain findings the at the appellate level analysis that went through other types of work not just the commercial driver i understand but the the evidence from dr morrison was evidence that was submitted to the appeals council in the appeals council accepted it as evidence so there is a part of the record correct and dr moise and said that this is a general requirement across the board it's not limited to commercial driver's licenses or cd else it is across the board it is a mandate by all employers that you must pass a drug test in order to qualify and this is not just prescription drugs or illegal drugs or whatever kind of drugs they are great he said oxycontin percocet methadone a schedule one drugs under the da right so your point is how can he return to work when he's going to have to be  declaration there wasn't anything in opposition to that so then we get to the step five determination ok and so the administrative law judge went through this whole analysis recognizing its the commissioner's burden of proof and of occasional expert testified with regard to these other types of position in the national have it in the transcript the vocational expert acknowledge that the job numbers that she gave in her testimony are not the jobs numbers for the specific jobs that she identified the burden of the commission or step five has to show that job numbers of specifically jobs existence and significant levels at the national certainly at the national level and when the c e o was asked the question whether the job numbers she identified for each of the three jobs that she gave in her testimony she said no so the commissioner fails in the burden that step five what what is what is the burden in the sense of numbers isn't the rule at the house show that there are jobs in significant numbers in the national economy is there a particular specific numerical number that has to be shown in order to meet the requirement no it's undefined and this court forget the name of the case and i can certainly cited to the courts and to send a reference to it i think there's a case by this court that said something to the effect fourteen or fifteen hundred jobs in the national commie is not a significant number i've never seen that case on consensus a twenty inch a letter if you have such a case i will i'm not sure makes a difference but well but does the significant number issue come up even at all in the sense that she said the numbers i gave don't apply to the discrete jobs that i named we're not talking  about jobs a was numbers b we're talking about job a with the numbers don't relate to that job which is a slightly different part of that issue ok so you're saying that we should remanded and have her put numbers and i mean what do you what do you arguing here the but the but the burden is on the commissioner and the commissioner can identify job numbers by specific a job titles that the commissioners failed in the obligation to identify job numbers for a specific job now once you get past that the question then becomes is the number that relates to that specific job is is there a job number that is is attributed to that specific job and if so is that number significance of to step one of the ve says there are a significant number of jobs of x y and z in the national economy is that sufficient i'm not sure i understand the question are not the words you're complaining about the numbers that were used by the ve because when she was question she said they weren't tied to the particular jobs she mentioned so i my question is if you take away the numbers and she simply uses the term that there's a significant number of these jobs the national economy does that satisfy step five no it does not and what case you rely upon or what regulation well it's always been the case is you have to put a number with the job and what's authority for that i can tell you is i'm standing here but that's always been the way it is you have to give a number for a job you can't just make a vague significant numbers without one if you add that to your twenty eight jail letter ok the some other issues include the fact that the judge made it perfectly clear he was not going to revisit the r f c in this case he says i'm not going to get into the issue of disability so he was reading this court's decision very very narrowly and in the end of the hearing mr very said that the medications he takes cause very significant side effects and those side effects were not considered in this case in fact the judge specifically said i'm not going there so the court wouldn't remember the case and the judge can revisit that case it should take an up another look at the v a decision and what he said was that the v a decision just didn't match up with the law and he said there are less stable on his pain medications which stable is undefined and stable doesn't mean fixed it doesn't mean that he's better just doesn't it means he's not getting worse and he's not getting better and he does have significant limitations and impact from his medications the and that's really not considered by the judge and the judge talks about at least in the in the commissioner's brief talks and we asked him to consider it and it's his discretion how much to weigh into it and how much value to give to that information so it's not like he refused to have you point out that information or that he was unaware of that information he certainly considered it well at least he wrote he did but in the context of saying i'm not going to  revisit disability in this case you know it's like what does it matter you can he can write about it but if at the end of the day the r f c doesn't change and his if he doesn't allow any testimony on that issue he can write what he likes but at the end of the day it doesn't matter but he's already taking into account information current more current information than the last hearing correct from the v a he is but at the end of the day if he's going back and adopting the r s c determination of the judge in the two thousand and seven hearing but my point is it doesn't change anything it doesn't affect anything and he he said he was not going to reconsider the r f c before he went into the analysis about the v a decision but after he had heard the they please the court counsel lawyers nelson on behalf of the commissioner of social security this court should have firm decision of the administrative law judge because it is supported by substantial evidence and free from prejudicial legal  i guess i would like to jump right into the issue raised for the very first time at oral argument being the jobs numbers this court in bayless v barnhart argued held that the foundations of the ve testimony is effectively challenging those qualifications i understood though the question being raised by counsel wasn't to the qualifications of the vocational expert but rather the burden of proof in terms of he's saying there's case law to indicate there's a two step analysis the first step is you have to actually show numbers a specific number of jobs in the national economy for specific occupation and secondly then you have to and that lies whether it's significant or not and here he's saying basically there was no number given so i assume that we mean it means zero and then zero can't be significant what's your response to that i there's such a requirement i don't believe so i would direct the court to twenty c f r section four for fifteen sixty five or i'm fifteen sixty six b and it starts how do we determine the existence of work and it says quoting work exists in the national economy when there is a significant number of jobs parents in one or more occupations so that yes is a question that i ask counsel whether the ves says there are a significant number of jobs in the national economy and this this this area at least according the regulation you're citing would that be sufficient yes i mean because obviously when we're talking about exact number of jobs we are you know we are it is based on an estimate and there were three jobs here and the a l j could reasonably infer that there was a significant number taking together the three jobs raised in the briefs and so on so waived issue in any event yes your honor was it raised at the ministry of hearing another words when the v says there are significant number of jobs decision i don't know the exact page of the testimony but the vocational expert did provide job numbers that the a l j relied on the argument presented here today  being a significant number correct can you help me it was something i what i thought counsel said was that numbers were given by the v but when questioned the ve said that those numbers and particularly applied to the jobs that reference if i understand your comment you're saying that ultimately there were specific numbers given that were tied to the jobs in question or is that incorrect i mean i believe the testimony was that the numbers are derived from categories of jobs and my argument here today without any benefit of reviewing or briefing the topic would be that the vocational expert can use her expertise to say that there are a significant number and the l j can also rely on this broad category under the regulations especially where there's multiple jobs cited by the v e e e so the a l j can derive from all those jobs together that even if the number is over inclusive there still remains a significant number it would have to be estimates in any event right i mean how can someone say whoever they are that there are x number of jobs in the national economy in a particular thing i mean those could change by the second how could you know exactly so they would have to be estimates in any event right an estimate in any event and also an estimate obviously qualified by the vocational experts expertise and responding to the specific hypothetical and the residual functional capacity assessment wasn't even addressed at the district court level job numbers are appearing for the first time as we stand here today and the lack of numbers the lack of significant numbers for instance i mean one category is  the where the vocational expert identified that job and then i believe there was colloquy about the job generally i didn't review that section of the vocational testimony with in great detail  thousand nine fifteen jobs nationwide solder production line with one thousand four hundred fifty six jobs in washington eighty one thousand and so on these are pretty significant numbers nationwide and it says g s all the new alternative step five findings but he reiterated his arguments in l j earnest of five because he failed to account for various limitations in the r f c assessment which gets back to step three i believe  to but bottom line is it sounds like at least from the magistrate judges report that we're not talking about two three four we're talking about thousands and thousands of jobs and if there if it were off by ten thousand doesn't make any difference if we consider this yes as i look at it there's over three hundred thousand jobs that the l g relied on and this court in a case called gutierrez affirmed that twenty five thousand jobs in the national economy  was a significant number in that case and so i would say that there as a wide berth of error where the l g s decision can still nonetheless be supported by substantial evidence as far as the  i guess i'll quickly turn to the other issues the declaration provided to the appeals council is related to drivers of commercial vehicles and the universal practice in the transportation industry so the vocational testimony provided to the appeals council does not support the drug testing is mandatory and all jobs in the national economy but don't we have to take what was said  in the report to the appeals council and we have to take that as true but it even if we do doesn't the fact that it's step by you have all these other jobs which don't require the drug issue doesn't that in effect render it harmless error yes your honor and i was responding to what i believe was counsel's argument that the vocation like some birds testimony was that absolutely all jobs require drug testing and that's one of the issues raised by the by the plaintiff here isn't whether or not whether jobs outside of the transportation you require either as a matter of regulation or customer you veterans affairs determination where they said that because he had he's taking these narcotic drugs he would not be able to pass drug tests ever gold he couldn't get any job he was completely out of it left port was discounted by doing that was discounted because the l g walks through and said yes he probably can't do some public safety jobs and jobs related to national security there might even be some other federal jobs that he could not do it but at the end of the similar to his declaration relating to jobs outside the transportation industry about you know the requirement of drug testing as you say his declaration relates only to the transportation industry right correct as far as drug testing goes so my question is is there anything in the record relating to other industries similar to that about whether or not drug testing is required or  convention in other industries there's not vocational testimony there's nothing on that point i think though we could derive that it wasn't required from that it was not require know that it was a required for his because  testifies that his past relevant work that they basically turned a blind eye to the fact he was taking some drugs now i he wasn't taking the methadone at the time but so that was all you know in his job as a c i'm talking about you know jobs outside of the transportation industry no that's right the a l j only relied on legal authority for that proposition you know but i question is there any testimony in record that would support a conclusion that this requirement applies in other industries say like in the whole no there is no testimony that a drug testing rip applies to all industries  and just as there isn't specific testimony to the opposite effect ok now who's burden is it on that issue that pertains to the residual functional capacity assessment which is between stuff three and very that is the commissioner's burden and so there are those three areas occupations that right and if i told her housekeeping yet so forth what's a testimony or indication that the l g a reviewed any evidence having to do with her and not the applicant's prescription drug use would be a barrier because it's drug testing for that proposition the l j drops a footnote and says none of the jobs pertain to the national security or public safety sectors which is the only area where drug testing is mandated exactly and so where does he get that though that that it's only related question is is that he did he gets to that conclusion by exclusion rate he says it's not in this particular requirement because we know that federal and state judge and state positions having to do with security and so forth but where do you have it that all that excludes everybody else well my understanding is from the legal research that the algae did the algae tracked down the statutory authority for drug testing is mandated and this was the only area that you can find public safety and interest of national security are and have another question so please don't have to feel like it when i had i know you're over time because of me ok but that has to do with legal mandates what about practices in the in the work community i mean doesn't the l g have to take that into account that there may not be a legal mandate to test employees for drug drug use but in other occupations or it may be the occupation or practice in certain areas even though it's not legally mandated that they would be tried testing and therefore because he took these prescription drugs he would not either be qualified to be hired or he would be fired if he were hired and tested positive well the proposition for that would be the l g s reliance on the americans with disabilities act and the state corollary because the l j said that if you're taking medication that said that it would be the employer's burden to show that it would preclude you from doing the specific position taking that medication so it's just it's the commissioner position that by relying upon various acts such as the americans with disabilities act showing that unless it impair the person's ability to perform certain kinds of work it was not it would be illegal to fire somebody who did take prescription drugs is that enough to offset actual testimony in the form of the declaration to the contrary about the claimant well yes i mean and i don't think that the algae would be deciding this to contradict as to the transportation industry which is the well i think what all of us are struggling with here is on the one hand you've got some evidence put in by the claimant which does not seem to have been met by the commission or to refute it or at least meet it if it is or something that we're missing here well the evidence put in by the claimant only pertains to the transportation industry and none of the jobs relied job i see so you're saying since since it was just about transportation the fact that the law doesn't require it is enough to meet that yes and i think the l j does have some leeway with common sense that every job in the country does not require drug testing especially and the claimants would often be protected because of under the american disabilities act they're taking prescription medication that doesn't it would be the employer's burden to show that precludes them from performing as sick or any other questions by calling thanks thank you very much we'd you have some rebuttal time counsel if you wish addressing the step five question in the impact of drug use the it goes back further it goes back to the r f c in the judge made it absolutely clear he was going to adopt the r f c that was in the prior decision there's nothing in the c that talks about the impact to prescribe medications when we try to introduce that evidence in this case the judge says i'm not going there well if you can't provide information that's going to impact the r and we then move on to step five the disadvantage to the claim it is the fact that because we couldn't get that evidence into the r of c we don't have anything any basis for challenging it step five the impact of medications in prescription medications and the impact on the claimant when he's taken those medications as it relates to his ability to do those jobs identified by the vocational expert ok we'll say so let's do the flipside to that step five at the commission ashburton is there sufficient evidence in the record to support that confers no then let me point out a couple things first of all on page eight thirty six of the record the vocational expert in response to questions says that when she gave the job numbers she did for the individual jobs they were job numbers for what are called o g s groups or occupational employment survey and these are groups of jobs of which the job that was on a den a five by the ve is one of the jobs in the group so she's not giving these big numbers for those particular jobs but for the whole group and she confirms that in her testimony on page eight forty when he she is asked as a possible at any point time to count the single job how many jobs exist answered no so what i felt that's the issue that i raised for get this you happy possibly know exactly how many jobs there are in the national economy at any given moment understand and i understand what your concern is but the problem is here is that there's the pull him in every question is she's not giving a job number regardless of size for that job she's giving it for a group of jobs she needs to further refine that number down and it may very well be that there are a sufficient significant number of jobs for a particular job that's named but that doesn't exist in this case what exists is job numbers for some undefined size group i think we have your viewpoint on that and the other questions by calling just the last one out with regard to that is that the occupation she does identify the housekeeping cetera as there any evidence in the record that should lead us one where the end is that drug testing would be required or would be used or would be the custom in the industry and therefore provide a barrier to your client or is he protected by a da as you are specifically counting on this files no specific issue about junk testing as a as a part of those three identify jobs but more importantly i think is can he do the jobs with taking the opiate pain medications on board he's taken methadone he's taken percocet he's taking them in increasing doses and they do have an impact on his ability to function