is the court i'm greg wallace and i represent vicky camp in this so security disability appeal the narrow issue in this case is whether the a l j properly relied on vocational expert testimony that created an apparent and under resourced conflict with the d o t and charles kemp suffers from is borderline mill retardation bilateral shoulder pain c o p d osteoarthritis in his knee depression anxiety the found that he could perform sedentary work but among other things limited him to only occasional reaching over his head with both arms and those limitations were included in the hypothetical the vocational expert in response to the hypothetical containing the limitation to only occasional overhead reaching responded or testified that can't could work as a check way or now according to the d o t this is an error by the l j that's the issue that's right and and but the l j is required to resolve on the record any apparent conflict in the apparent conflict that exists here is between the v testimony on the one hand that mr kim could perform a job that requires constant reaching with the v with the hypothetical imitation to no overhead of more than occasional overhead reaching because the d o t defines reaching as reaching in all directions to yoda the s c r which is the companion volume to the d o t well that's kind the authorities given it's not the o t proper and b is not up there to me at least from the sort of colloquial description of what to check where does jones cites from yes this is all it's come clear from the regulations yes your honor the d o t is the companion volume i mean the s e o is the companion volume that elaborates on the d o t classifications council there's this ruling that says what the a l j supposed to do and you're familiar with it yes i have a clear go through and underline the word conflict and at the top it says any conflict i'm quoting here halfway through it says apparent unresolved conflict halfway down it says conflicts or apparent conflicts in their words that the able jase posed to do or die it says any possible conflict and coming out of it says conflicts or pair conflicts they use about five different crazy ologies of the standard has any court addressed what the real standard is here not that i'm aware of your honor and i would would suggest that if the if the ruling defines conflict by using terms of with a parent and possible that that means that it is not a a clear contra conflict in other words if there is a question about whether a conflict exist that is whether there is an apparent or possible conflict then it is the ale j s duty to resolve that conflict on the record which is not what happened in this particular case the apparent inconsistency is between the d o t s c e o requirement or indication that this check wire job requires constant reaching is this was standard way of doing it this miranda warning you know at the start of the ves testimony is that the standard way of doing typically it is and that doesn't fit with the regulation the regulation acts like it's afterwards the you do that write some e mail js do it beforehand i the administration of the plainly written s s are does sound like you're supposed to do it afterwards it sounds like this must be of any possible conflict ask the v e about the conflict and then get a reasonable explanation i think that's the way it reads that i would not dispute that interpretation of it your honor i suppose that they could and could ask that question before but i think it is difficult to put it in a question format until after the testimony has been given and so but to the apparent inconsistency here the inconsistency is simply this how can a person who cannot reach overhead more than occasionally s found by the able to perform a job that requires constant reaching and reaching is defined by both the d o t of s e o a and the agency itself and so security ruling eighty five fifteen as reaching in all directions so the reaching here we assume of this reaching is in all directions unless specified differently well nobody these are lateral handoffs one on me i can't see reaching over had to throw explosives around them ammunition manufacturing facility what what is th why why would anyone have a clue that that the s e o's generic in all directions which can't be taken literally because it's impossible would would extend the over over head reaching default position on the us includes overhead reaching that's clear from the definition whether the other types of reaches that it doesn't actually use the word over and it says all this is reaching in all directions which would include overhead i would assume but with sounds like three hundred sixty degrees which nobody shoulder can do well certainly your honor that's in a in a three dimensional capacity here when you talk about reaching in all directions this is reaching if i'm reaching overhead and and with all due respect  honor you don't know exactly whether this job requires overhead reaching or not i don't know that governments council doesn't know that the a l j doesn't know that it is precisely within the scope of the expertise of the vocational expert to say whether this job which the d o t says requires constant reaching doesn't require any more than occasional overhead reaching is just how many angels can dance in the pit going well the seventh circuit in protectionists came to the the same conclusion that we're arguing at this court come to hear they're simply insufficient evidence in the record to determine whether there is a conflict a con to it seems like there's a conflict it may be a conflict because there is a possible conflict because of the definition of reaching includes overhead reaching and the sale j specifically said he can only perform occasional overhead reaching how do you reconcile that with a job that requires constant reaching of reaching is defined as to include overhead reaching so there is a possible or apparent conflict here and there simply not enough evidence in the record to determine whether there is whether the ves testimony in fact conflicts with the  given the fact that there is a possible conflict the ael j was required to to resolve that on the record that's what ruling oh dash were p requires despite its other ambiguity that's pretty clear in that regard and so that's why we would simply ask in this this is not just hyper technical for this case but it also goes to vocational expert testimony in other cases as well the ale jay and the district court in this court cannot be expected to read the vocational experts mind and that's why the agency requires that any possible conflicts be resolved on the record possible conflict exists here and yet it was not resolved on the record thank you robert thank you on the definition of reaching we simply disagree on how to apply that definition now the fundamental issue in this case is whether an individual that can only occasionally reach over a head can nevertheless form a job require that requires him to constantly reach now i want to point out a mistake i'm afraid and an oversight that opposing counsel committed during oral argument he repeatedly used the word all when referring to the definition of reaching as contained in the s c of the so that is not actually the word that the c e o uses and i think that it is not a synonym under these circumstances the s c oh actually refers to reaching as extending the arms in any direction so when i if i extend my head's forward and performing the act of reaching if i'm extend my head over head i'm also performing the act of reaching i reach no matter which direction i extend my arms and i think the word any makes that clear it's not the word all it's the word any and i think actually one thing that's interesting to me the the tenth circuit found the definition in the  persuasive in that case the tenth circuit directly explained that reaching is defined as extending the handset and arms in any direction and the tenth circuit goes on to explain that the s o c o does not separately classify overhead reaching the us under the s even a job requiring frequent reaching does not necessarily require more than occasional overhead reaching i think that's pretty persuasive logic do you want to counsel addressed what kind of conflict we're talking about you heard my quotations from the s s are yes honor well fortunately from the commissioner's perspective there is no conflict whatsoever in this case so we don't really have to worry about the vagaries of language that you've stupidly pointed out in the s s r we don't believe there is is a an apparent conflict we don't think there's a potential conflict we don't think there's a possible conflict we think that the dictionary of occupational titles simply does not speak to the issue in play the dictionary of occupational titles doesn't supply a generic frequency indicator it does not suggest however how frequently the individual need reach in any specific direction since two thirds of the more of the time yes your honor and i think that just to make a hypothetical i want you to imagine a job that required an individual to reach forward as pretty much the only thing that he did all day hans doesn't maybe he's got a conveyor belt doing all day long yeah well an individual like that would in constant reaching by extending his arms forward but he would never extend his arms over head or down or down less he had to pass or somebody up on another level take it from one another you see i love lucy right you take it one to another up or down around well i would certainly agree that definitional a reaching can involve any direction but in this case i want to proceed to a point out that the ale jay did a quick his duty he instructed the that he called a vocational expert as authorized by correctly offered a hypothetical question for sedentary work with the one additional limitation that he could reach overhead only occasionally and the ve testified that despite these limitations the individual could work as a check wire where now counsel said that the record just doesn't have any evidence on the issue but i would suggest that the ves testimony in this case is implicit but necessary but necessary evidence for the proposition that this job doesn't include overreaching overhead reaching he was there he heard the hypothetical when the instructed him that this person can form overhead reaching the ale the ve nevertheless testified that this person could work as a check where now i did it because there was no response to that there was a conflict well also your honor i would say that this isn't the sort of thing that's a conflict you can look in the d o t front to back and it would take you a very long time but you can look at it front to back and there's nothing that indicates the frequency with which an individual needs to reach in any specific direction it's just not there i think the phrase i used in my brief was that there may be a latent ambiguity in this case but there is not a cause inflict potential or otherwise now i wanted to furnish an example of something that would be an apparent conflict quickly to distinguish it that might be let's say a job is described as light work in the dictionary of occupational titles in that case there would be an apparent conflict but that conflict might be capable of resolution and that's what s s are for people contemplates for example the ve might testify in that circumstance that thousands of these jobs these light work of these jobs inside this encompassed by this occupation are like work but many other thousands are sedentary and his testimony only extends to the extent that there are in which are sedentary that would be an apparent conflict and that would be a valid explanation that the v e could offer to resolve the apparent conflict there's no conflict here there's no concrete country there's not any possible conflict no your honor now i would agree that it's possible for a job to involve overhead reaching but the d o t simply does not speak to it and since the d o t does not speak to it it's not there enough though for us to say let's go back and sheet let's get this straight so that everybody in the world that the this and rely on it more reasonably than presently well you're on it for one because i don't think that there's any concrete conflict or there's no conflict at all there's no potential conflict there's no possible conflict there's just an issue that the d o t doesn't speak to i think that would be departing from the law the second issue is what we're in what  conceivable ways in which the job if could can require more than the person is capable of doing we're only looking for apparent conflicts and there was no apparent conflict in this case now i would i would also point out that earlier i gave a little i gave a demonstration indicating that a person who just had to constantly which forward would nevertheless be reaching can't constantly well if we take the appellant's into application of the definition of reaching to bear in this case then suddenly any job that requires constant reaching is going to according to the  o t require constant reaching as in all directions no matter how obvious the description contained within the d o t is that the job does not require constant reaching in all directions and you know court so that can be solved by asking the to actually committed the cardinal sin of not asking about conflicts at all and in the seventh circuit they apply kind of a more rigorous standard when the a l j doesn't ask at all because there's just a primary violation of his duty one choir about and then i would also point out that i'll be an unpublished cases that the tenth circuit reached the same six conclusion and to go via and that the fourth circuit also reached the same position in bird what about our case of mcgovern reverses chatter while we're counting the noses of the xd duty to develop the record yes your honor i would just suggest that the ail chafer feel the only duty that came into play there by instructing to be that his testimony needed to be consistent with the dictionary of occupy patient titles which actually isn't necessary and then instructed him to expand upon any perceived variances i would also point out that direct your attention to and a case that i cited on page contained in that case in that case the ve in question actually does break down the issues with relating to reaching and in that case the ve testifies that the d o t consistent with the commissioner's position ves understand the dictionary of occupational titles frequency indicator as the commissioner argues on appeal and that i think it would be imprudent to interpret the definition contained in the s c l in a manner that's inconsistent with how the actual practitioners in the actual experts view the source material i finally i just wanted the very end to direct your attention to the  requirements of a job contained in the d o t and derives ways in which it's conceivable that these requirements may exceed a given job in question and that there is an opportunity for and again i would reiterate that we don't think this is a harmless error case the commissioner takes the position that the ael j did precisely what he was supposed to instructing the ve that his testimony should be consistent with a dictionary of occupational titles v e understood clear that we are not suggesting as as counsel for the commissioner has said that the scale i mean the check way or job actually in fact does require constant overhead  reaching and or or more than ok janelle over his head reaching but given the s e o definition of reaching which includes reaching in any direction and the agency definition which is identical it could include more than ok janelle overhead reach him hence the existence of a possible or apparent conflict the d o t at least suggest by defining reaching as reaching in any direction that that is a possibility that the job would require more than occasional overhead reaching it doesn't rule that out and the v testimony in this case did not exclude it i would simply ask the court to think about this if you were an ale and you had to ask a vocational expert to consider whether  whether there were any jobs available in the economy for a person of the claimants age educational background work history and that claimant was limited in certain ways including limited to only ok jand all overhead reaching no more than than that and the ve asked them to testified well your honor here's a job that i think he can perform but by the way the d o t says that that job requires constant reaching would you leave that testimony as it is or would you ask well if the job requires constant reaching and i told you to rule out jobs that require no more than occasional overhead reaching how is that resolved you would ask that the in all has an opportunity to go back to as he's writing his decision to make that in cory just like like we do and writing our brief is the record show here whether i don't think that the b didn't read from the n c o on the deal to eat it no but he did specify this check way or job and he gave the d o t number for this job which would allow the ale jay to go back and look up that number just as we did and compare to say look i you know the ve says this job requires constant reaching i limited the claimant to only occasional overhead reaching could you resolve this apparent conflict he wouldn't have to reconvene the hearing he could send a ruling places the responsible squarely on the ve not on the claimants council to help make the government's case for it in this particular situation thank you your honor thank you both coun i guess not that unusual but not not a typical disability appeal and that's why we thought after studying it the argument would be helpful and has been we appreciate both of you coming to help us