good morning everyone welcome to the eleventh circuit this as i have told your predecessors on tuesday and wednesday is my first time to preside so i'm hopefully getting a little bit better as the days go by the first thing the judge anderson and i would like to do is to provide an abbreviated welcome to our newest colleague judge brandt we welcome to her formally on tuesday but are just thrilled to have her with us she is a superstar and we're excited about a very long tenure of hers on this court so welcome judge branch  the second thing i'll do very briefly is just to give you a couple of ground rules please assume that we've read your briefs very carefully we've read the underlying cases we've read the pertinent portions of the record so no need as you stand up to recap fact or procedural history just get right to the issue you have a limited time before us and we want to make the best use of it second as to the traffic light timing system green yellow red you understand it intuitively when the red light goes off there's no need for you to stop mid syllable just begin to bring your presentation to a close and if you you know c s begin to wave our hands you'll know that it's time to sit down so the first case this morning is that bellamy versus the commissioner of social security number seventeen dash twelve six six four we have mr steinberg for the appellant mr wilson for the apple e o mr steinberg at your leisure ok thank you may have please the court has tools and this is a case that  this is a situation that keeps recurring and basically years ago there was cases where a vocational expert would testify that a hypothetical claimant could perform certain jobs and the jobs were characteristics of the jobs were not consistent with information contained in a government publication the dictionary of occupational titles and the selected characteristics of occupations so sort it's around the country made different rulings on how to address the sis that situation some circuits say the diction of occupational titles takes  pretty major were ruling zero zero four p which says that in this situation judge will ask the vocational expert if his testimony is consistent with the information contained in the dictionary of occupational titles  selected characteristics of occupations if the vocational expert says it does then explain the disparity and then the judge will analyze the situation and decide which which will go with  this circuit there was follow up cases that said despite the ruling joan still looks lies and the testimony of the book ational expert still trumps the information contained in the diction of a compassiona titles so i can ask you a question what what is in your view is the correctness of that proposition of law that despite the ruling jones continues to apply as prior panel precedent does the ruling can the ruling i suppose reverse jones or do we have to do something about it then bank there is a problem it has to be done to bait the problem is in other cases they said that rulings are not binding on the courts it doesn't have the force and effect of law but the cases that talk about that aren't the same as it is this ruling because the social purity regulations say that we are bound by our own rulings so in and if so what the rulings are now part of the regulations because the regulations say we are bound by those rulings so i do believe that the decisions were wrong that is zero zero four p is binding on the court it is it has the effect of law even though it's a ruling because it's incorporated by the regulations now now let me ask you this so just if that's right if it if it has the effect of law if it if it has the force and effect of law then we need to go in bank or is it the ruling i think that's an incorrect finding and it misinterprets the cases that he's citing which say the courts are not bound by rulings of agencies because in that those cases they were dealing with a situation where regulations say that the agency is bound by their own rulings ok now that being said let's even assume that that  the judge asks the vocational expert if his testimony is consistent and he says yes let's there's an obvious discrepancy that's all he has to do other circuits i believe it's the i don't inconsistency which were alleging in this case the judge has to do more than just ask the question he has to look at the dictionary talk to patient titles and say is there actually is it actually consistent in this case we had a situation where the judge had limited the claimant to moderate noise and one of the jobs require who was involved loud noise so there was  apparent and obvious disparity that wasn't picked up at the here there was another limitation to limited depth perception and the selected characteristics of occupations that frequent depth perception so you have a in apparent disparity the attorney didn't object at the hearing because you didn't know there was a parent disparity you know that you have this this huge dictionary occupational titles and you know that you can't have somebody there's no way you could know what the book aisha lecture is going to say until he says it but after the hearing so it can go back and look at it and say ok other was there was a disparity in and let me ask you a question about that there were there were three positions the packager position the marker and the assembler positions and so even if we can see that there was conflict with the packager position perception and in the hypothetical the the judge said limited depth perception their job we have a problem with this mark the judge limited visual acuity to twelve point prints and the job a marker requires frequent near acuity now i don't know but what that means you know whether you know frequently or cute is like twenty inches from your face like like you know looking at a computer or reading as opposed to like i'm looking at you that doesn't require frequent near acuity but reading does also so where is the conflict between the clarity of vision at twenty inches or less and twelve point five where is the conflict i don't know if there's a conflict that was where the other argument was that the hypothetical was a little bait and that little bit was vague because the judge did not ask the vocational expert this as frequently or acuity is is that inconsistent with what i just said the twelve point print so we can fact if there is no conflict with respect to the i would agree with you if there were if it that is the but the other argument was that the the hypothetical to the locational expert wasn't clear enough so that but if you lost on that argument and also  have heard that there was no conflict with the market with respect to the market position then we wouldn't have to reach the jones issue is that not true yes so you say you agree as we're sitting here today that the absence of a conflict with respect to mark or setting aside the hypothetical issue the absence of a conflict with respect to mark or one of the three is sufficient if there was no complicated i do p that there was a conflict because the marker job required frequent frequent near acuity and that appears to be in conflict with the finding in the decision it had suggested that the claimant had limitations with mere acuity but when saying twelve point print i'm not sure whether that's clear enough to the vocational expert made i don't you know it's is there any conflict in the vocational expert said yes so why does that why does that answer not kind of carry the day on what you're talking about now questioning whether there is a conflict oh because he also asked them is there a conflict he said no and it you know on the depth perception which he was wrong in on the noise level which he was wrong so the vocational expert gave incorrect testimony obvious and apparent incorrect testimony of the other two jobs so we're not so sure that if you brought it to his attention and said this job requires frequent near acuity is that still consistent with is your testimony still consistent with the  dictionary occupational titles he might have said well you know i didn't realize it was free could near acuity just like i didn't realize that that is that the depth perception was constant and the in the late noise level was loud i changed my opinion or he could say yeah i know what the the dictionary buck a patient title says but i disagree with it i think it's different but but you know if you know it's not really clear that the vocational expert was knowledgeable about whether the please the court the only real issue this court needs to consider is who has the burden of proof i think claimant is trying to shift his burden of proof at step five from himself to the administrative law judge or a l j but the law and the commissioner's support policies don't support that argument the commissioner asked this court to affirm and in doing so i'm going to cover three points the first is that the a l j complied with social security ruling or s s r zero zero four pete the second is that claimant has failed to show an apparent conflict to this court and more importantly failed to show an apparent conflict on the record and the third is that this court's holding in jones is not necessarily implicated here but even if it were the facts of this case do not give this court a reason to retreat from its holding and jones can i ask your indulgence i guess especially in light of judge anderson's questions would you mind starting with with point number two with what and whether there's a conflict here at all sure ambiguity the court has to resolve that against claimant who had the burden of proof at step five turning to the to the assembler job it requires constant depth perception constant is a term of art that is a term of frequency and i'll show you here did not find that there was a frequency limitation in the claim its depth perception he had said said that the claimant couldn't accurately judge distance or speed so if the assembler jobs were sort of like i love lucy with the fast moving line any claim and had to pick things off of it that might be too hard for clement but the dictionary of occupational titles the way it describes this job is that the assembler puts pieces together and it sounds like it may be done at a workstation again to the extent there's any ambiguity about that the court has to resolve that ambiguity against the claimant because he has the burden of proving he couldn't do that job the simpler job also requires constant  correct there's no there's no record evidence indicating that his right hand is impaired and the dictionary of occupational titles for the simpler job doesn't say that caused it reaching in handling is required both hands that's significant because where the d silent under persuasive holdings from this court that these testimony controls and perhaps more importantly claimant hasn't identified any particular duty of the a similar job that he's unable to do with the limitations in his left hand so again he's failed to meet its burden of proof on that issue the final job is the marker job that requires frequent near visual acuity again frequent is a term of art it's a term for quincy and the a o j did not limit the frequency of the claimant's near visual acuity just found that he couldn't read small and twelve point five again the d o t doesn't say what size font is involved that needs to be read in this job  so the ves testimony that the claimant can do this job controls and again claimant has not identified any particular job duty that he is unable to do because of his limitations in reading a certain point size  so and so claim it has failed to show an apparent conflict at this court but more importantly the persuasive holdings of this chord are that whereas here a claim it feels to question a vocational expert  he can't really show an error and the reason why is he hasn't burden of proof at step five he needed to show an error on the record that needed to be resolved but he failed to do so and held just picking up on your adversaries point how just in the real world does that happen he says you know there's this giant dictionary the guy gets questioned how is he supposed to know how do you do it on the fly and he and i guess he suggested that you might come back after the fact and sort of paper the record is that how it happens there actually could be a number of ways this could happen so an apparent conflict could come up when they all j asked is your testimony inconsistent the vocational expert could say yes it is inconsistent and then the l g has to seek a reasonable explanation claimants counsel could also cross examine the vocational expert about the requirements of the job at the hearing claimants council could ask the a l j to hold the record open after the hearing so that he could get vocational expert evidence and submit it under the commissioner's regulations there is another step after the a l j hearing and the administrative review process and claim it can submit additional evidence there at the appeals council level so there are several points where the claimant could submit additional evidence and develop the record about this issue but claim it feel to do so here so it's not the case that he'd have to be sitting there with this giant dictionary in the guy testifies he's got to be thumbing through the dictionary and be ready on the fly to sort of confront the guy with the conflict  burden of proof rather than a waiver the supreme court's holding in sends vs apps whole said that there is no sort of issue exhaustion requirement now they were speaking specifically at the appeals council level left open the question of what happens at the a l j level but because that issues out there i think the cleaner decision is just to frame it as a burden of proof issue it the burden of proof a little bit because of that  has to ask questions as part of the duty to develop which is different than the burden of proof the duty to develop at step five the courts have said you know the a l j needs to produce jobs and then the claimant has the burden of producing evidence that he cannot do those jobs i would liken it to maybe mcdonnell douglas where where the employer has the burden of production of showing legitimate nondiscriminatory reasons but the claimant still bears the burden  the vocational expert identified now can ask you one quick question so it seems to me is among the three jobs your strongest arguments as to no conflict in order would be mark or a similar packer if if we were to conclude that there is no conflict with respect to mark or is that sort of game over no conflict as to one at least as judge anderson says where there are sufficient jobs out there that finding has been made on the record is that good enough even if there are conflicts or might be conflict with respect to two and three i would respectfully submit that based on this record there's been no conflict shown for any of the jobs ya know just indulge me though let's assume that it's just number one just marker yes and that alone would be substantial evidence supporting by finding what cases soho i cannot think of a case off the top of my head but the commission is i think the third circuit in rutherford is hale that you familiar with that case i am not familiar jobs existing in significant numbers in the national economy and that third job alone provides a significant numbers so while i'm not familiar with the holding up rather for it the commissioners nationwide regulations still support support that argument so so the point is something like harmless error i mean if you got it right as to one but got it wrong as to two and two and three so long as one is sufficient we don't worry too much about what happened two and three i wouldn't phrase it as a harmless error issue i would phrase it as a substantial evidence  that one job alone is substantial evidence supporting the step fact finding so returning to the commissioner's first point about the social security ruling as established it's only a duty to develop it does not shift the burden of proof to the a is sufficient for this court to affirm what what's the status of the kill it with respect to this issue some of them hold that it's enough sample it as happened here even though it's not verify that issue and i think there are several reasons why pearson was incorrectly decided so first under the fourth circuit law the l j actually has the burden of proof at step five the social security act says  claimant has to provide evidence establishing his disability under committee regulations the commissioner may issue the commissioner's regulations in turn say claim that you have the burden of proving your disability and neither the act nor the regulations carve out an exception at step five and binding case law in this circuit is that the claimant still has the burden of proof at step five pearson i think also has problematic logic it claims that in an inconsistency can be apparent to an a o l j even when it's never brought to his attention pearson decided on one particular meaning of the term apparent based on its own reading of the commissioner's policies but if the commissioner had intended a specific meaning the commissioner could have used that meaning but did not do so the sort of practical application of pearson i think is potentially troubling it requires the a l the hearing where a ve gives testimony to essentially disbelieve the ve the job expert say no i don't accept your testimony then compare every single portion of the r f c with every single job duty one the commissioner had you know pointed out that the four circuit got it wrong with one of its holdings about the testimony and other context so pearson which is our published case from the four circuit if you look at the  affirmatively disavow that case not pearson but fourth circuit another case and that's point on the same point i'll a slightly different point and valving v testimony ok i'll briefly address the jones issue as i pointed out in my brief claim and didn't raise it at the district court level so it's way down appeal this court said as recently as last month it would need to issue an on bank decision to overturn jones that's a pretty don't see jones as per se inconsistent with the s s r based on the facts in this case where everyone gets tripped up is the trumps language jones says that the ves testimony does not automatically trump or doesn't automatically trump when just has to ask for a reasonable explanation and if that's forthcoming that east testimony still trumps the d o t which in my view is entirely consistent with jones thank you very well thank you so much stated that a certain number of jobs is a significant number of jobs they say that's up to the administrative law judge to decide what constitutes a significant number so one judge may say ten thousand jobs is not significant another judge may say ten thousand jobs is significant and the courts will say that it's up to the administrative law judge to make that determination so i mean how many jobs are available in the  market you know when i came here i didn't realize i was going to be able to bring my laptop so i don't have that in front of me but if you let's assume it's fifty thousand or sixty thousand you say well the all that's certainly a significant number well it's up to the judge to decide the judge the ministry of law judge to decide what is a significant number not up to the courts because if the court takes that step in the court could also say another number is not significant and that's not just the for the courts to decide is for the administrative law judge to decide so our position is that if the other two jobs are not applicable then we don't know what the judge would do if the only job available was the marker job and just it's i think it's two hundred sixty four thousand job yeah and you know i didn't do the hearing but i can tell you this you know what this is going to come up in other cases where you have the bureau of labor statistics that has this thing called the classification of occupations and they have like two hundred jobs and a certain s o c category and that category might have two hundred sixty thousand jobs the vocational expert will take one occupation out of those two hundred occupations and say there's two hundred sixty four thousand judge jobs nationally and i'll be seeing you guys on that issue  sued but be that as it made there are not two hundred sixty four thousand jobs in the country that is a ridiculous number i didn't do the hearing but that's just not true i mean that's like saying there's a there's a million jobs from you know look up marker you'll see that no other location expert has to say there's two hundred sixty thousand of the fact that he has argued that the burden was on you when you were before the administrative law judge but when your client was to to show the apparent conflict in it it appears that that record has not been established and certainly not even challenging the number of jobs are what i do at the hearing is different what other attorneys do but i wasn't the attorney at the at the lower level what i would typically do is i have west law in front of me and i have the dictionary of occupational titles in the selected characteristics of occupations in front of me and when they testify i say well i'm looking at this job that requires frequent depth perception a constant the vocational extrasolar i'm sorry i made a mistake let me give you another job but that wasn't done by the stand that you aren't there you aren't the attorney but it seems like the  be able to develop the record so really we have to address that the legal issue of does the judge have a burden under zero zero four p to identify a parent conflicts or is it