like to start with a discussion of the disability case of mr bachmann's respects the fifth and the last phase of a disability assessment as you know the so security disability analysis involves a five step process at the fourth and fifth step of the disability process there's questions about whether an individual can do their past work and if they cannot whether or not they can do any other work that exists in significant numbers in the national economy and first of all i'm directing my attention to the period after april twenty fourth two thousand and twelve which is when the a l j change the r f c previous to this date c was an ability to perform exertional work in all levels or as of april twenty fourth two thousand and twelve the exertional requirements were you dues to work at the light exertional level that unaided past work done by mr buck so the analysis is simply that of the fifth and last step six jobs are identified at the fifth step three at the light exertion a level three at the center a level the government has conceded that the sedentary jobs are in a political and not appropriate in this case based upon the limitations of simple routine and repetitive work the three sedentary jobs require more than what is stated in the are of c that leaves the four light level jobs now a post hearing submission was given to the l j indicating the little bit on that process because i it really struck me that the great discrepancy between your numbers and the vocational expert numbers and so discrepancy and then we can talk about what the h a supposed to do under that circumstance in order to answer that question we first must understand that there is no published data in this country about the availability of job numbers by discre rely on other sources to get that data what happens is the bureau of labor statistics which is the source of job numbers in the united states publishes job numbers by what are referred to as either s o c codes or o e s groups which is a  number it's a large group of jobs with very skillful skill levels and exertional levels and which a particular job may fall the job numbers for the group for the whole group not for an individual job the information that was used in this case is from a private vended software program called job browser pro we say use you may use by the v a yes the ve testified that she used job browser pro as the source of her numbers we have the same program we use it ourselves and so when we got that's that's what i'm trying to understand so the be basically went to this browser and then compiled but you went to the same source yes and the numbers are still different i'm just trying to understand how that happened well what happened is that rather than use the numbers for the discrete d o t codes she used the numbers for the o p s group that's for the variation comes in she's using numbers from a much larger group of jobs rather than the specific job that was named by the ve at the hearing you argue this in your briefs you know but yeah because that's some you can take judicial notice of well here's the problem and this is what this is what we're asking you to take another look at and that's the bailiff's case this court decided in two thousand  is that the word reliability which is in that decision as part of that same phrase is is too often disregarded or overlooked ale j s essentially don't listen to don't care about or don't want to hear about information about jobs numbers that is different than what's testified to by the ve at the hearing and the question is is the reliability factor is being disregarded we're asking this court to clarify the decision that the issue of reliability is essential in the issue of job numbers in this particular case you can say well your numbers are different than  numbers but at the end of the day even though these numbers that we provided were given to the judge before the decision they didn't pay any attention to he didn't mention him and didn't consider them and so he gave you an opportunity to proposed rule will know the general rule and it applies to all cases is the a l j must consider all evidence it comes before him or her and in this particular case the information we provided about the discrepancy between the v e testimony at the hearing and what we did using are the same program that was used by the v a simply wasn't considered even though it is my problem with you with q done this case is that you know this is all accept the factual basis of your argument in your brief a sufficient right to overcome the the vocation experts finding of first of all of post hearing well know you by now you can submit additional information to a judge all the way up to the time of the decision and there's no bar ok but my my i was going to answer your question about you said no expert of our own but if you submit information to a judge that whether it's from the attorney or whether it's from a vocational expert what difference does the source make if the information is not going to be considered it makes it in the in the decision the judge made it perfectly clear that he wasn't considering that information wasn't mentioned it wasn't discussed i footnote in his decision on page ten of his decision footnote three he very clearly makes it that it's his position that once the ve is qualified that's the end of the inquiry and so doesn't matter if additional evidence is submitted to to it's contrary to the the it doesn't matter he's not going to consider it now before  indicate during the cross examination of the book case no expert but he's going to allow for submission on this issue post hearing submission isn't that what prompted people's hearing submission i think we mentioned it we mentioned it to the judge that something would along these lines would be submitted i don't recall specific conversation that's in the in the hearing but i'm sure it came up as an issue but the judge was clear  that once a vocational expert is qualified as an expert any inquiry into their testimony about job numbers is basically irrelevant because the fact of their expertise qualifies their testimony about job numbers as i said before  if the information is not going to be considered it's irrelevant as to the sources now before the date that i mentioned april twenty fourth two thousand and twelve the judge ruled that the claimant had the ability to return to past relevant work the which was listed in the decision but the evidence in this case shows that mr buck has never been able to hold down a job of any sort with any degree of reliability or consistency with the exception of the pioneer job which was lasting seventeen months and which is basically a a sheltered workshop situation because it would do is they take in people with disabilities or people who are on referral to the from the department the department of corrections and unfortunately mr buck has had issues where he's been incarcerated for periods of time but the issue in that regard is the fact that while it's claimed that he can we he do this work he's never demonstrated any ability to do work at this length of time and that raises the issue of one of the diagnoses or one severe conditions defined by the judge which was a personality disorder is that we outlined in our briefing material there's twenty one different personality and so workers under that umbrella and he has an anti social personality disorder which makes work very difficult because he simply can't get along with people on the job or generally as a result of that that's the incarcerations that's getting fired from every single job he's ever your honour's man pleads the court jeff mclane on behalf of the commissioner of social security before turning to the specific assignments of error i think it's worth knowing in this case that the elegies decision was supported by substantial evidence including the medical expert testimony of dr louis and dr tows as well as the treatment record which documented improved functioning on medication mr buck also reported during the period issue that he liked working on computers and did odd jobs for cash for his disorder and personality disorder severe although the l g only stated personality disorder in bold and finding the narrative that followed that discussion mention the anti social personality disorder that was discussed so they l j was well aware of the nature of mr buck's personality disorder in rendering the decision going to step five jobs if you dale j reasonably evaluated the vocational evidence in this case and reaching a conclusion at step five the l g a identified the bottling line attendant bottle packer and conveyor belt maker positions and they exist in significant numbers  with regard to plaintiff's challenge to the job numbers the l j absolutely considered that challenge there was a discussion on the record at the hearing about the issue of the job numbers the algae opened the raptor left the record open for further submissions on the topic and in reaching the decision the l g a stated on page four thirty seven i note that while mr talbot takes issue with various aspects of the occasional expert testimony most longacre of expertise establishes a foundation for my conclusions that analysis is in line with the bailiff's case and this set of facts i don't think provides any reason to change that analysis under bayless an elegy may take administrative notice of any reliable job information including the testimony provided by a vocational expert and the reliability issue is supported by the ves rexx recognized expertise therefore the l g a is free to  the filing by petitioners counsel was before the iowa a l j and the l g took that into consideration i understand your argument correctly i would i would phrase it yes i believe that's my basic  assertion there the evidence from john if that is your assertion explain to me again how we know that the l g a actually took the information into submission into account because as i indicated counsel discrepancy is so large so stark that when the a l j is silent on it how do we know that he actually considered it it seemed to me that the record can be read as the o j took what the ve said and then the bailiff case said well that price of fashion foundation i'm going to take these numbers versus saying wow these numbers are really different let me here's why i'm accepting the vocational expert numbers despite the fact that the numbers presented by petitioners council very different it's true that the l j did not delve into the issue in the written decision however what's explained in the decision and what is then considered by the l j is not necessarily the same there's no law or requirement that mr that i'm aware of there requires the l g a to provide further explanation than is given here l j acknowledged the existence of the arguments the l g was aware of the entire record and i think it's reasonable to infer the elegy therefore consider the arguments that were put forward and the issue of whether or not this was properly before i think goes to a matter of weight mr talbot provided his own analysis his own land alice most of the job numbers which runs up against the vocational expert expert analysis of the job numbers mr talbot did not provide a vocational experts interpretation of the issue which would have been a much more serious challenge to the findings of the vocational x we have  in this case there is a step for finding covering the period before april twelfth two thousand and twelve and then afterwards the case turn to step five another way of looking at this problem is to say that it most reasonable interpretation of the job numbers was offered by mr talbot but there's no reason that the vocational expert testimony or reliance on that testimony was not also reasonable by the l j l g a serve the function of taking evidence making findings noting the jacksons of mr talbot and moving forward to draw reasonable conclusions regard to dr tender dein the first reason was that the opinion was based at least in part on non credible subjective reports the second reason was that the l g a or that was the doctor kenderdine failed to consider the possibility of symptom the medical expert testimony of dr tove dr toes in particular noted that the scores on the back depression inventory were so high as to be invalid and possibly suggestive of symptom exaggeration also did a clinical interview in the mental health or mental status evaluation right yes he did so those objective measures those are objective findings your honor and so is it is that  well i would say there's a there's a difference between a mental status examination that's been conducted in what the findings on mental extended examination were so the findings on mental status examination from dr ken or dying were mixed with regard to social functioning dr kenderdine noted that buck was cooperative on examination with intact logical and goal directed thought process sees dr tows testified that there was a conflict between the clinical exam and the findings  dr kennard dine he noted that dr ken irvine identified that book completed a complex task on examination but he nevertheless found buck was markedly limited in his ability to follow complex instructions so when the court when the allergy is faced with the mental status examination that may not necessarily explain the degree of limitation in the medical opinion that's the basis for concluding that subjective reports played a role in the psychologists judge dennis fide specifically what's wrong with that that's not the nature of psychiatry that's always going to depend in part on subjective reporting of symptoms there's a there's a range of situations when you're confronted with a psychologist opinion and very frequently psychologists conduct a mental status examination they do the clinical interview they're absolutely discussing the subject of complaints with the claimant however there is a gradation when you're looking at what relationship between the objective findings are to the opinion rendered for example if you had this is not the case before us but if you had a mental status examination with completely normal findings but then you turned and had an opinion where there were market and severe restrictions you could say well there's a conflict between those two things and you have to infer or could infer that subjective complaints played a role in the decision of the psychologists you can also have a situation where the objective findings fully support the conclusions of the psychologist thereby you say well the objective findings were enough on their own to make that decision and to uphold and conclude that the valid conclusions of the psychologists were there this is a middle situation where the objective findings were mixed and yet there were some that suggested the individual was not as limited as dr kenderdine  pined in that situation as the o j concluded there is a basis for saying that subjective complaints were in part a basis for reaching his decision or reaching his opinion the second reason offered by the algae also provided support for the algae analysis he determined that based on dr tows testimony that there is an evidence of possible symptom exaggeration if there are no further questions just as you well know thank you very much thank walter in response to the question us counsel in the first hearing in that case there was no vocational expert so there was no discussion about job availability because we didn't even get to step five of the sequential evaluation process what is important about that this isn't however is it judge strong bomb reversed that case and sent it back for a new hearing because the judge failed to consider the testimony  evidence of dr kenderdine and basically that's what we're saying here is we have an l j that failed to to review the information that was provided to him after the hearing have been reversed the first time any in your ear the second time well the second time we actually had vocational testimony and what's interesting is a quote from the judge's decision that says i note that while mr talbot make takes issue with various aspects of the vocational expert testimony miss long a scarce expertise establishes a foundation for my conclusions so he's not directly addressing the data that was submitted to him rising by way of the conclusion that based on the six jobs that are listed above i'm finding that the claimant can do work that exists as significant as one relates to the other but what's important is in the footnote it for his or her testimony quoting the bailiff's case with doesn't say at all that the judge it considered the data that was submitted to him and as i said before he's leaving out the reliability aspect of testimony of a vocational expertise simply saying if somebody comes in and they're a vocational expert that's enough for me whatever they say is good but he that isn't what he did according to the body of his opinion right well but it's like when judge strom bomb reversed the first appeal based on the lack of consideration of doctor cantered inst testimony we're saying the same thing we're saying it if the judge wants to examine our testimony and say i don't accept that is disregarded or whatever the rule is that's fine he's accepted it or he's looked at it but he can't disregard it and he disregarded it because it's not mentioned in this case now as far as dr kennedy is concerned we do have cases going glaring in the social security area that that say that you know if a judge here l i l j doesn't have to or affirmatively address every piece of evidence that has been introduced and to say i accept it or reject it isn't that the rule well i don't think that's the rule i think that takes us in a dangerous direction because if a judge is free to pick and choose without regard to talking about evidence then we have really problematic kinds of decisions the carrier is sort of how are you advocating a rule that then dale jr has to address every piece of evidence introduced at the at the at the at the hearing it depends on what the evidence is and i know some of the cases referring to talk about their lay witness statements or lay witness testimony is introduced by way of written statements in the case and say well you don't have to talk about every one of them but in this particular case when we have such a crucial piece of evidence it should at least be considered whether the judge would agree with it or not it's a different issue and by the way with respect a doctor kenner's we submitted a post hearing  sworn statement from dr copeland who's also a psychologist at talks about the the back inventory scores and that the conclusion of the m e at the hearing about the back  inventory scores as being too high and being improper is not supported anywhere in the medical literature just it just isn't and that was the linchpin upon which the judge rejected the testimony of