specific location at a specific time that testimony can only be based on statistical data driven sources and when the expert refuses upon request to provide those sources the experts testimony standing alone cannot constitute substantial evidence for three reasons fost this court's definition of the tom substantial evidence and its application of up to in reviewing the decisions of administrative tribunals second because the government's arguments as to why the experts testimony standing alone is sufficient denied the material he did engage in some cross examination that appears in the record but i think critical your on a is that without the material itself any meaningful cross examination regarding the experts methodology calculations without actually seeing the data sources itself i think this court's decision in florida power and light is an important precedent in this respect because that the court noted that the testimony the well founded test of any of an ex but maybe enough if first hand information is unavailable and particularly because there were two sources the expert relied upon the bureau of labor statistics data which was public but then also a private labor markets overseas which the ale j never sold and we never saw that made any form of cross examination or meaningful inquiry into the basis for these numbers impossible when i don't understand about your argument is how it connects with the substantial evidence question substantial evidence refers to a quantum of proof and it's hard for me to see why that inquiry is different depending on whether the underlying information in question in question was requested or not the court the argument that you're making sounds like a procedural question a due process question where there were it was unfair not to i don't require the expert to produce the underlying data can can you just explain how the procedural question that seems to be at the core of what you're arguing fits in with the substantial evidence test of course you're honest i think we have two aunts as to question that first and foremost we are not asking for the documents on demand procedural rule that the government characterizes us the government who bears the burden step five is choosing in these cases to only rely on the testimony of a vocational expert now the government has a availability to enter all the evidence into the record as well if the government chose to submit its own labor market surveys we would not say and i'm not saying that there's a standalone constitutional violation because the vocational expert didn't give positive is well i know you're not saying that evidence it's substantial or it's not substantial explain if you can why the question of substance the issue of substantiality depends on whether the evidence was asked for or not you're not i think it flows from the basic intuition that when you question an expert about data if the expert cannot then back up that testimony that creates doubt and although i don't think it's an exact match i think a useful analogy all the adverse inference cases which this has recognized when a party or a witness says i am presenting evidence of a court but there is better evidence somewhere else that substantiates what i am saying well i see that argument now in this case was it the attorney for who was it who said that the the expert was not required to produce the evidence was there opposition by your adversary or was that the the l j it was the  and so you want to what i think is critical here is that when the government says the record is exactly the same it is not if for example the expert had said one question for the data i have a source but i'm not going to identify it i'm not going to show it to you i think that would create real doubt yeah yeah i see that but when they're the expert says this is my opinion and you say produce the underlying evidence and the expert doesn't say no i'm not going to do that i won't do that  somebody the judge intervenes and says no that's not required why does that create doubt about the validity of the experts testimony expert hasn't refused to produce that evidence that's been the intervention by the l j so you want if i can just clarify it was both of the experts said that data is in my confidential client files and therefore i don't want to produce it in the l j said i'm not going to require that and i would note that the government doesn't defend in this court the confidentiality rationale and i think the reason for that your honor is that as the claimants lawyer said below it would be easy to redact or block out the names of the clients indeed federal courts and administrative agencies deal with highly sensitive information about national security or intellectual property and here they think i don't and sure maybe made in that you're right in this case maybe but i mean even if we were in court experts rely on all kinds of things and if you ground for going into it or not depends on the case and what why would it be any different here where in fact it's not even a court and you have a law which says you don't even have to use court rules of evidence i you see my point maybe you're right and you i repeated your i understand your point you're on but with respect i disagree with it and for two reasons i'm not i'm asking a question i'm saying why is it different from even a trial where the standard is less and in the trial my understanding is is that what you disagree with or here certainly it would depend on the case so you and i have a practical answer to your question and a legal logs and i'd like to get both if i might as a practical matter of vocational expert testimony has been widely criticized in the courts of appeals with courts noting that the methodology is at times propos that exact same job in almost identical time periods have given numbers from the hundreds up to four hundred eighty thousand and the reason for this huge range in the answers experts give is it's not simply like an expert in these expert should they should have gone into it in this case because it was really rotten when you have a pretty good bar and you would think that the bar there would find a case maybe it's yours and go to the court of appeals and say look you should have looked into this one and then when they look into that when they disagree with you you would have said just what you're saying now but i don't understand you see and you might have one maybe you should win  don't understand is having an absolute rule that every expert who's vocational regardless of what he relied on or how much trouble it would be would have to do without cross examination or a strong basis in the law faith in the facts of the case why you have to produce all this stuff maybe it is confidential maybe sometimes it should be sometimes you shouldn't and you see that's my problem i understand your problem just aspiring let me see if i can address it the government that was after this case that's correct you're on about it so that wasn't in place at the time can i go back to justice briar's initial question and perhaps justice alito you say very explicitly in your reply brief you're not asking for an absolute rule that is that an expert must be for testifying produce these materials you make an exception for when it's asked for but you also can  see in your reply brief that there might be situations where it's not necessary where the expert opines doesn't produce their materials but there's other independent evidence that reliable and could be relied upon to constitute substantial evidence and so there's no absolute rule according to you but what you're asking us now to hold i think is that as a matter of law an expert who opines on something and refuses to provide the sources is sufficiently unreal reliable that it doesn't constitute substantial evidence is that what you're trying to naughtiest are not exactly just  sort of my if i can be very clear on the rule of the seven socket household and that we are arguing for in this court in this context when an expert is providing statistical data and then cites to statistical sources they rely upon and say these  upon so that the agency can make a determination and so that we can conduct a meaningful cross examination in that situation the say so is not in our year defining meaningful but let's let me pose a hypothetical  expert says with this expert says and you get up and say how many of these people had the same conditions as my client has and the experts virtually every one of them how many people did you do research on with respect to this issue i contacted about fifteen businesses have you placed these kinds of individuals in the kinds of jobs you've talked about yes one hundred of whatever do you believe that in that circumstance you could stand here and say that there wasn't substantial evidence from which the a l j could rely upon even if you had not seen the underlying records your op i think i'm giving you the best case for them because the better case for you is for her to say well i've methodology that really could be questionable those are the two extremes we have isn't it that's where you are all right the potential extremes we have but no one asked any of those questions b for us to make a judgment about whether to if i can answer your question in two ways first i think is the easier case because here the ex by didn't say it was my experience she said labor market saudis and so the expert explicitly didn't say i have placed a number of people but honest hypothetical head on in a situation in which vocational expert says i've placed a number of people over my ten year career in this position or in these sorts of positions i think it is likely that would not be substantial evidence and here's why you're on a section four twenty three d to a the statutory provision here requires that there be a significant number of jobs in the national economy now that number has what significant means is a subject of some debates in the courts of appeals and it appears to be a multi fact a task but what is critical is that it's at least in the hundreds unlikely in the thousands and these types of jobs that are getting placed are very specific jobs with people with very specific limitations so even if an expert said i've placed fifteen people over the last ten years in these jobs with similar limitations to your client that doesn't provide a basis you know that there are hundreds or thousands of those jobs and i think it's for that reason that vocational experts rely on so vai's a not only their own possible experience in propounding that's what i think you're missing the point which is you wouldn't have needed the service to make the argument you just made you could have questioned the expert and shared the lack of a sufficient basis for their conclusion and then made that argument to the j what i'm trying to get at is i understand the need in some situations to actually see the surveys but don't you have to lay at least some critical ground for why that's necessary in your particular case i understand your question your no i think initially i will just say a baz this out as soon as my client's claimants representative off for the surveys the l j made clear she wasn't going to give them so i don't think there was any opportunity even to proffer reasons but even beyond that your honor it is the government's budden at this stage and given the nature of this type of statistical testimony even a cross examination when asked in our case an expert says i relied on public data and i relied on private data it is hard for me to conceive of what kind of a meaningful cross you could do of the private data the expert then provides about this is what the data said this is what i did to the ada but there's no way of verifying any of those kind of one only one way to be to look at the publicly available data right and there was no questioning about that was there i mean to the extent to bureau of labor statistics information shows you say eight thousand jobs in southwestern michigan that's where it was and the bureau of labor statistics shows a different number i absolutely agree you have exactly what the expert relied upon in a case like this how i think in many cases like this and this is why vocational expert testimony has been the subject of criticism the public data alone is not only not enough but it is often of an entirely different character because the taxonomy in the public data in the b l s data uses a far larger definition of jobs than what the d o t the dictionary of occupational titles codes which is what the the a the ve is required to identify so what happens is in our case for example the s o c the standard occupational classification codes in the census encompass in some cases hundreds of d o t codes and so when you look at the overall number that comes from the census that can be in the thousands or in the hundred thousands but the critical question and this is what the vocational expert is required to do is to say how many jobs with somebody with this level of education this skill level these kind of disabilities how many jobs are available for them so was available it was a very partial source at best and i think the critical question and that's why the experts in the situation didn't only rely on the b l s data was because they needed to be a significant winnowing of those numbers to get to the something more and i would just note that this is a very specific type of testimony this is testimony where a witness is giving statistical on says identifying statistical sources and i think it would be rare in an administrative procedure in that situation for an agency to interesting case in this respect now we agree with the government for sure paralysis discusses procedural due process but equally crucial in paralysis paralysis came under section four zero five chief of the social security act the very same provision we have an issue here and the question presented by the government in paralysis to the court was whether or not the medical expert testimony in that context could be substantial evidence and i think what's important about paralysis is that in part five of the opinion was certainly also discussing procedural due process paralysis was that they laid out the tests that were conducted the results of those tests the types of surgeries that were conducted and the results off the surgery where your reliance on that case raises the interesting question a question i think is interesting it which is whether there would be any basis for limiting the rule that you're asking us to adopt to the specific situation here which you have stressed where it's testimony if statistical testimony by a vocational expert  social security disability hearing why wouldn't the rule that you're asking us to adopt apply whenever there is a question if a determination by an agency is supported by substantial evidence well your not i think for sure the tom substantial evidence is one that applies throughout administrative law but what this court has made clear in a number of cases is that of course it's time to evidence looks at the record and thus inherent in the question in the answer as to what substantial evidence means is what is the question of the agency is trying to address in a situation like this where you're talking about specific numbers that the agency is relying on as the sole basis to deny my client benefits for the applicable period that i think when the expert points status sources that she has modified in order to come up with these numbers there's substantial evidence requires more but in other situations you want to for example quality of testimony even testimony such as these are the kind of jobs in my experience i believe somebody with these sorts of limitations can do for you the first part of what vocational experts testified i think that's entirely different but i do think in this situation it would be very normal when an administrative agency comes up with specific numbers and bases a determination on specific numerical conclusions it is the norm to then make the agency will make the expert show that work why you want into your argument to be the same if there had been no request at all your not certainly we would that if the rule was that vocational experts have to give over their testimony regardless of a request or not we would win i'm just asking why is not part of the un proposed rule you want to no court of appeals has ever held that there was a requirement but i think i'm sympathetic to the rationale behind that will but i seems to me that you were rash and now suggests that the on demand part of your test is irrelevant your honor i don't think it's irrelevant and i said i don't think it's a relevant for the reason that when you a witness and the witness then doesn't give you the test the very data sources they rely upon that introduces doubt and i think that is where the question and the answer play into the test and i think that's the rationale of the seventh circuit they haven't elucidated it exactly in those terms but that is what i take those decisions to say which is that when the testimony is given alone if it's not challenge then maybe it's enough but when you oscar witness what is your data and the witness doesn't give it over and again the government isn't defending confidentially ality rationale that does create doubt and i think the adverse inference cases show that intuition in the law you know i guess i just i'm just not getting it because either it's enough or it's not enough it doesn't have anything to do with whether somebody  demands the the information well your honor i think unless the demand part of the test is something about to have you forfeited the right to complain about it well your not the seventh circuit and the ninth circuit which is also applied a similar standard have cases is to essentially say if you question somebody they cannot back up the data and i think it would be analogous you want to if you asked a witness in exactly the same case where did you get your data sources from the witness said either i'm not going to tell you all they said well they occurred to me one day i looked up something but i'm not going to identify what it is on the internet for you that does create doubt in a record you are not just as he is the failure to look at those numbers when requested even when the claimants represented i don't need your client you can redact those clients names that creates doubt in the record and that is why particularly in a context such as this when you have multiple outdated data sources which vocational experts have to bring together when vocational experts come up with numbers that vary introns against the expert if the expert sincerely believes perhaps mistakenly but sincerely believes that what is requested is confidential your not i think the again it's not directly controlling here for sure but i think you can use the same intuition from those cases because there's a very easy method which again the government doesn't dispute here to redact that information and provide only the crucial information i think the reason aga particularly in this context of vocational experts why the state to restore important and why the failure to provide it is so practically harmful in addition we think to being in conflict with substantial evidence is because these experts a bringing together very old definitions of jobs with entirely different taxonomy of job numbers putting the numbers together and coming up with a result and then in certain circumstances reducing that result based on the hypotheticals posed by the a l j so it is a data intensive proces the vocational expert identified as much in her testimony and not even having the numbers but the vocational expert is admitting she relied upon how close not only the claimants representatives ability to cross examination but also crucial seek six hundred seventy thousand hearings that's about two hundred twenty five hundred a day over one million people are waiting for us to response for their hearing and they wait on average about six hundred five days there is no adjudicatory process on a scale comparable to this and congress has properly vested s s a with broad authority to determine the right process to develop records the question then here then doesn't that solve this case because your agency now has in its handbook that every expert has to come prepared to cite the sources that the relied upon and to produce the materials so if they've made that judgment why shouldn't we make the same judgment that a failure to do so goes to the heart of the experts on reliability the vocational expert hamburg we're talking about the informal gardens really is referring to root locational resource materials that they use their in our bright brief an op ed page now and we discuss in the not page eighteen i don't have the handbook in front of me unfortunately the language of the handbook says the site explain furnish any sources you want to support your testimony but the reason we think this is talking about resource vocational resource material is because an expert just doesn't know the questions and the granularity of the questions of the experts going to be asked so for example there's two stages of question you are picking i can explain there are two level to think this will help to address your concern there at the first level of inquiry the vocational expert is determining the category of jobs based on generally things in the dictionary of occupational titles that discuss exertional limitations and such for those jobs so for instance sedentary jobs that do not require any kind of advanced or education unskilled jobs then the expert relies on public sources statistical sources like the that provide numbers in the national and local economies and the expert they don't map exactly so the experts going to have to use some judgment to extrapolate those are questions that can be explored fully at the hearing and in fact are the garden suggests that they should provide these these are things that you predict in advance but there's a second level at the hearing there are very specific types of impairments that are not addressed by the grid so the grids take into account these high level impairments but there are things like impairments depression ability to concentrate things like unable lift above your head or more than five pounds these are things that you just don't know into you come into the hearing and in this case a page ten for instance of the reply brief petitioner acknowledge if the petition appendix because that's the actual testimony the first time this comes up in the current is in the context of where the expert got her number her on task percentage that is you have to be on task about eighty percent and so she says she gets it from our experience the job analyses a few lines down can you provide a job analysis the expert says i cannot doesn't say that she just sits observes those we part of people's but as individuals confident private confidential files remember this expert her resume is in the vocational expert works as a rehabilitation consultant to find jobs for people that's her job so she is very well situated to take a person have hypothetical questions about what the person can do and answer questions and this is precisely what she's doing she's saying on my experience you need to be able to focus you be on task eighty percent of the time that's those type of information that you find without the data how is somebody to cross examine her on that and how is the a l j to verify that conclusion well you cross examined by simply asking basic questions well when you say doing job analysis what does that mean where are you getting this information you when you talk about your confidential files what is the information in the confidential file were did you develop that information of questions about methodology sources that can be explored and if there are you can get to a point there are case law cites a case at least one case in our brief where if you go down the cross examination path and the expert she goes on the job numbers don't remember the job numbers are again on two different levels there's a high level job numbers that is three hundred sixty thousand jobs between bench assemblers of sorters and then there's an inundation one when when you're given the hypothetical about lifting that's going to be reduced probably an exact quote but what i will say is that there's no way and then vocational expert cannot know they're going to ask can you lift five pounds can you list seven pounds this person has this specific type of  of depression that requires an x y and z you don't have public sources for that the experts relying on expertise that's built and maybe reflected in confidential client files but you can't bring your entire source of your files for your professional experience to the also and he doesn't mean any like some agency pronouncements they're not we shouldn't defer to the agency's handbook on any well the non the non binding guidance is written for non lawyers not intended to be a statute and i think it's written for the for the experts written for the experts but again if you're a vocational expert and you know how the game is played you know how this this this different no way you can bring all your files to just a slightly different  question if we were in federal district court and i know we're not then forget about the rules of evidence but if on the key issue in the case the evidence depended upon the testimony of an expert and the expert said i'm not going to give you my underlying data secret i don't think we would hesitate to find that no rational jury could sustain a verdict in favor of the party propounding that expert why isn't the hypothetical is that that's the key point and on that key point the only main piece of evidence is an expert who says i have secret data you'd agree that we would reverse likely reverse however however i would like to point out some key differences there is factual differences which is one this expert's not refusing there's a ruling by the adjudicator five fine you can modify my hypothetical but it doesn't make any difference does it well no i actually  said i'm not going to make the expert turn over his secret evidence we'd still reverse because had no rational jury could find actually i'm not sure that's right this court has held that for instance there's no problem no process problem with admitting allegedly totally unreliable evidence so long as you have the ability to process probably contest not a process problem and a sufficient evidence for a rational jury to rebut if this is if this is a qualified expert there's no contest on the qualifications the expert testifies to a fact now there may be additional things that undermine that but there's otherwise new other evidence no evidence that contradicts the expert i think that's a tough tough call how does that work i mean i actually don't know  but but you think of any kind of an expert a house painter or a doctor and the plaintiff has a certain kind of injury to himself or his house and the doctor says well a person who coughs like that and a person who has that kind of lifting problem i've looked up all the treatises and they suggest there might be x or y and in my experience i can refine that further because i've had thousands of clients and when they cough like that it means ok and that's all there is and if that's all there is is that expert or the housepainter says the same thing about a about a rotten board or rotten board in my experience means termites if it's like this but not if it leads out and i've talked to many doctors or many house painters and i've seen a lot myself and that's my experience now is that reversible  well then why would it be reversible error here if the vocational expert says exactly the same thing you're going to say it isn't ok so that the one thing that i'm holding is is this standard looks to the whole record and there are things that could evidence that can be admitted into the record that can undermine the bottom one conclusion so if for instance and there are cases like this the vocational expert gives a bottom line number and then there's cross examination and if the expert cannot answer any credible way how the expert came about doing this well you know i'm a vocational expert well that doesn't make any sense are asking you now and you probe and you probe and it ends up under so undermining that testimony that the record evidence shows that not a reasonable person a recent person would not have relied upon this so next to later when the matter how much of an expert person is what she basically said is is trust me i've i've done this for a while and i think and it's not just trust me i think in general trust me i think it's twenty you know twenty percent and it does have a sense of being pulled out it pulled out of the year there are two point so i think are important one there are many issues in the social security hearing just like in other  is one of them and oftentimes issues are not contested and when they're not contested you don't have to develop much of a record on it the reason is you would if you had to develop a record on uncontested things it would be an unmanageable process that happens in court litigation said i'm not going to order that that that somehow elevates the prior answer into being reliable me no expert is the judge in a case correct the judge has to accept the testimony right but you're right so how can an a j accept testimony for which it's blocked and then answer about how the expert came to their conclusion that's his basic argument which is that this testimony is unreliable because i was blocks from being able to show i don't understand that process argument on my point is and i think as we've already but that's a process argument not a substantial evidence argue because the substantial evidence depends on what actually comes in i get on the stand and say anything i want and if the a l j stops the other side from having the bases for that the record is devoid of a basis for that answer and it's unreliable for that reason that i think is the core of their argument but here are the ale gerry which is the ask the attorney to stipulate to the expertise of the expert and the attorney refused to do so because an attorney so because they thought that that meant they could not dispute anything the expert said which the judge says no no issue in this case look let me step back a second and i think this might help will there's a great reason good reason why counsel doesn't probe numbers like this there are the numbers the testimony here were based on two categories of job that total about three hundred sixty thousand jobs in the national economy the six or there's no magic number about what constitutes the standard of a significant number of jobs but the sixth circuit which is the governing circuit here has held consistent with other courts that six thousand is enough so we're talking about numbers testimony at three hundred sixty thousand and you've got to get it so far it's got to be so off that it can even be ballpark to six thousand and so it doesn't matter whether the job number is one hundred thousand or two everybody talks about not soyuz do this but it varies from two hundred sixty to four hundred seventy thousand and that's a huge ferry and it makes you think where is that coming from and what are to what are we to do at this stage one of the analysis for that the vocational expert estimates they have to do a few things one of which is you have to determine the category of jobs now in this case the category was sort these are sedentary positions but that whole number of jobs that were before and in the dictionary occupational titles and the different vocational experts are going to focus on different sets so some of them may have a broader set of sorters some of them have us less yourself and you don't list five agricultural not sorter one hundred twenty five thousand every culture and that source and country it's a lot of the type of sorter positions sedentary sort of positions so when you look at these cases what you find are the court simply saying there are so many either in one case it's agricultural sorter and one case that was sort of another case disorder so you're saying they're all asked answering different questions different questions you cannot tell from this in the right way to examine that is to cross examine it cross examination as the court has explained its explained is the time tested way of discerning truth and and accuracy in testimony and there's no reason to do exclude that here when you usually when you're having someone testify to data and numbers the way you cross examine is to ask what she relied on and then see if that testimony lines up yes and so for instance yes but here she said i can't give you the data on which i relied well no this is a give you a few questions i think would have clarified just his considerably the with respect to the job numbers the expert testified that she relied on b l s numbers and i remember b l s provides both national and regional numbers for various types of jobs and she dished only relied on her individual market surveys and but remember in this context she isn't in it expert who helps individuals find jobs for her labor market surveys one would assume are for individuals finding jobs where they can redact the names the probably assumed given the course of the testimony it was well there are about twenty to thirty percent of these sedentary jobs that are excluded when you have to lift above your head right then we wouldn't know and if you think that's wrong well then you can probe further you can say well how do you like what is the basis how many people are we talking about how far did you you survey out all of these are things the good weight but again to find new substantial evidence you'd have to find that no rational decision maker could have relied upon that so there are all kinds of cross examination questions that would have clarified this and all we're saying and we're not saying that when you cross examine an expert if for some reason this impartial expert who's already been certified as an expert find the burden isn't it your burden to prove that those jobs exist why is it their burden to show the basis for your expert's opinion it's me getting out there and just say this is the number believe me this is a public right and claimants bear the burden of proving disability the way the social security administration has administered process is it is relieve them of the burden of production with respect to the step  providing a book ational expert such the vocational expert provide something that the claimant can respond to but that doesn't mean that the claimant can simply say well i want to report and if you don't provide a report from your private clients there's not substantial evidence to have to require cross examination to be able to discern what was this how relevant is this report and how does that affect the bottom line for instance the job numbers that will only became relevant did not include a twenty three percent reduction because the l j did not find that the the claimant couldn't lift his head or lift more than five pounds it may be completely irrelevant but we don't know that because it's not in the record although we suspect that it is relevant we can't show that so there are all kinds of reasons now going to petitions position from the petition to their opening brief that was shipped a little bit in the reply brief have asked for a categorical rule it's substantial evidence and you can rely upon it if there's no demand but if yes there's a demand and you feel to respond to jason require it and it's in your office which you have to travel to then it's not substantial evidence that ignore what's in the evidence the several questions pointed to it's not a substantial evidence question it's a procedural question it's also not to hear it because it's truth but if it's the key it's the key fact in dispute and it really is in all these cases right and that's why you have a vocational expertise how many jobs are going to be that this person could do if it's the key thing in dispute and the expert has said i want to keep my evidence on which i'm relying secret so it's not as injustice barres example saying i'm basing it on my experience over thirty years in the industry and then you could maybe ask about that and you could have your own expert with thirty years in the industry could opine on that and in fact the federal rules of evidence of course treat that kind of expert very differently than an expert who relies on data as this one did this once i've got secret data all right and it's the key question in the case well then why doesn't that create an inference that that they're an adverse in prince that that witnesses hiding something and why doesn't that undermine substantial evidence there's two questions the talking about review of a jury verdict or review here under substantial evidence where you have to find no reasonable adjudicator would have gone concluded so it's a very different inquiry having bracketed that i will admit there are some answers that can undermine a bottom line response and we can quibble about where you know how far down that road you have to go to you'd agree that ok so we have some common ground that an expert could say something or withhold something and in a way that on a key question that would be there really is a problem here it's not and it may or may not be dealt with in gross i am not sure but why does and they why don't you find a test case or suggest to the bar find a test case where you do probe and indeed it does turn out to be resting on nothing and you either win or you would lose and if you lose you appeal it and if you win you have a model of how to proceed for others in the future i think i mean is there anything wrong with doing that and could that help solve the problem i think it would depend on how that's written but i would like to just focus on if it is contested significantly with cross examination which is not in this case then i would be very hesitant though to require things like personal confidential files that's going to require significant or you have a process that i mean the fed you know gets a lot of information on the basis of surveys that they certainly don't want to reveal and that can happen in various agencies though sometimes you might have to reveal it well there are cities there are cases i think that a highlight exactly what you're talking about where there's cross examination and we cite again at least one or two of these in our brief where the on review this like you know this cross examination so undermined the basic predicate of the basic testimony that it can no longer be substantial evidence we're not quibbling with that what we're saying is that the categorical document on the man rule which the which frankly is not a coherent view of the substantial evidence would be imposed on the agency and they've mentioned the seventh circuit the seventh circuit  never required information from personal files there's two seventh circuit cases that are central donahue dicta mckinney there was cross examination by counsel and the answer about from the vocational expert about how the  numbers was basically what was based on my knowledge of the v and the follow up and there was still nothing substantial after that and so in that context that's not a big problem the two district court cases the petitions cited page forty of their brief and then reply on twenty four both  involve cross examination pat all reversed on other grounds didn't reverse on the the question that we're talking here and simply encourage revisiting an issue on the man and in reynolds there were multiple problems with the testimony that was reviewed long cross examination there's n tradition in the seventh circuit or anywhere requiring to categorically rule that this court granted circuit on and it would substantially impair the operations of the socially minutes how how would it so we're member these cases are hearings are tightly packed the volume of the cases is immense people we are i don't understand that is how that's going to do or where the reason is because you're not going to be able to predict in advance what documents might be relevant be on the high level talks that we're talking about and you'd have to get them from your files and that's going to require continuances and having continuance in this situation where claimants are already waiting on average a million people think about this a million people are waiting six hundred five days on average new requirements in the handbook going to slow things up no because we don't understand that to mean bring all your personal files we understand that to mean bring things that you're likely to be relied citing from the b l s or other d o t these publicly available sources that you can provide those upon request the government's argument that its failure to provide timely hearings should be an excuse not to comply with other requirements not not at all but i will say that there is a significant undertone of fairness and d process here and what the court did in paralysis which i think is undisputable due process today's is it broke plied before kathy's versus elbridge but it applied the same basic framework as what the court solidified in matthew versus eldridge and one of the things is consider is the cost of the additional process the cost of the additional process here would be significant thank you counseling you five minutes mr obama thank you mr chief justice and please the court i'd just like to respond to three things the government side first and foremost the government's lawyer represented that the vocational experts handbook simply requires them to bring public information they might perhaps i'm sorry but if you look at page three of  all hearings you should be prepared to cite explain unfun ish any sources that you rely on to support your testimony well what i think mr bobbie you're right about that but instead it's just well that's the best practices rule but the best practice rules and not necessarily a legal requirement i agree with you justice kagan but what i take from the government's own handbook is two things firstly that administer ability arguments are inconsistent with the policy the social security administration itself practitioners in the seventh circuit is that this is applied and that when data is not handed over and the case gets appealed to the appeals counsel in some situations the social security administration lawyers agree to a reminder so the data can then be provided and it's not specifically on the timing issue nationally there are one hundred sixty four hearing offices the average amount of time to process a claim is five hundred thirty six days for the hearing officers within the seventh circuit based on my calculation which i did last week and i don't imagine the number has changed significantly it's five hundred twenty nine days so it's actually quicker in the seventh circuit now these are obviously large numbers but the basic point is this procedure which has existed since two thousand and two has not been shown to slow down the process the other thing i'll say is that the government lawyers says well you don't know what questions are going to be also the hearings or how do you know what sources to have but if you don't know particular questions and you don't have the specific data driven answers you can't be on tsering the question in the first place so giving that data to a requesting claimant that's all them also in a case like this where this was the sole basis upon which my client was denied benefits for the relevant time period this rule has worked without disruption in the seventh circuit since two thousand and two and it is entirely consistent with the very policy the social security administration recognizes as good practice for vocational experts the government says you ask for more  not justice ginsburg we are asking for exactly the same rule which is to simply put that when a vocational expert testifies and the expert identifies data sources that she has relied upon if you request those data sources and they are not provided the say so of the vocational expert alone cannot constitute substantial evidence of the other walk of vailable to an applicant for these reasons you're on as we have it the decision of the six socket to be revised thank you thank you counsel the case is submitted