doing your honors i'm jeffrey baird representing tony little in this significant numbers case please the court and i apologize for having a sore throat cough try to be bold and clear i'd like to reserve two minutes for rebuttal if possible this is a significant numbers of jobs case where the magistrate judge not a nail jay made the ultimate finding of significant numbers and in doing so the magi e never considered or talked about or analyzed the various vocational factors that might make adaptation to jobs more difficult this claimant had a limited education unskilled work  history a sedentary are of c s found by the magistrate judge and other vocational factors that would have made adapting more difficult the gutierrez case is instructive in that when twenty five thousand jobs nationally was deemed a close call where nail j made the finding and where the jobs in question were agricultural jobs here the remaining jobs are sort of off address or  stuff or address or puts labels on packaging and types them out and the stuff or operates machine stuffing toys well given the jobs that remained and given the vocational factors of the claimant argument is it would be better to have a nail j f factfinder first instance so are you asking her remount we'd be we be settled without i think there's reasons to pay but the right or the district court and that would be consistent with the twenty eight j letter citation to allen from the tenth circuit in the first instance an agency fact finder should calculate significant numbers when there's been significant erosion and again here at eighteen thousand and five nationally that's about three hundred fifty jobs per state actual numbers in washington are less than actual numbers here are one hundred ninety five so it's unclear what the pattern of the remaining jobs would be nationally or where the with numbers that low they would be representative of much or indeed didn't mention her age bracket she was actually older than what the calculation but is there any is there any doubt that he was using forty nine well given that he was next she was fairly close to the next bracket correct so was he evaluating her looking to the next bracket given that she's like five months away from  that's true that would be something to raise for the l j the main consideration would be age is an increasingly limiting factor and then the various vocational factors specified in the statute and in the regulations limited education  sit stand options sedentary r f c unskilled work history those are all be limiting factors that would make adaptation more difficult and the motivating principle seems to be that the more difficult adaptation will be the more numbers that would have to be there found to constitute a significant number that's consistent with the medical vocational guidelines where an older person for example needs more jobs out there before the agency can say comfortably automatically not disabled so for example a twenty five year old sedentary unskilled not disabled automatically fifty year old sedentary unskilled automatically disabled so it must be that as there's increasing adversities or increasing adaptation problems more jobs are necessary to create a significant number here the magistrate made that calculation on his own without reference to these factors it's too low a number for an imagist trait to be doing that also it's hard to say is it is he finding harmless error again as who no number as a matter of law or is it just too low a number as a matter of the facts in this case it would always have to be as a matter of fact in this case there's no bright line in law says there's a close call at twenty five thousand again when the male j finds it and and then m the fact finder would have to carefully weigh vocational factors including increasing age is a increasingly limiting factor in determining whether a particular set of jobs or significant numbers ok would be significant good morning may it please the court and jeff staples on behalf of the commissioner who asks that you affirm the district court's judgment because the decision is supported by substantial evidence and free of legal error we're talking about this aren't there some mistakes here though yes your honor so so how can you really say under these circumstances that they're harmless while the question is how do you do that harmless error analysis and harmless error analysis is not optional the supreme court in shinseki sanders said that harmless error analysis by this court by reviewing courts is mandatory once you find that there's an error you don't just send it back to the a asking my locker because isn't there some regulation some guidelines some standard some something there's nothing other than with the twenty five thousand is a close call well i would make two points to that issue your honor the first point is that in the case in which this court held the twenty five thousand was a significant number that's the gutierrez case this court cited favorably the eight circuit case of johnson  ten thousand jobs was also found to be a significant number but the can also perform the job he was actually perform the job at the time that's true but there's no reason why that affects the significant numbers significant there's been a lot of discussion about vocational factors and what that goes to is whether these jobs exist for that claimant so at page ninety one the l g asks the vocational expert to consider a hypothetical individual with a hypothetical residual functional capacity and ms little's vocational factors so the vocational expert already has those in mind when she offered the numbers of jobs that would exist for a person with these particular vocational factors so those facts have already been taken into account when the considers the numbers at step five to recount those now would be double counting of the significance of the vocational factors all the regulations in the palms that talk about the fact that the elder needs to consider the vocational factors the did the  and what have you gained them that's what it seems to i'm trying to figure out what's motivating you here in terms of why you're hanging tough on this and it seems that what you're trying to say we have case flat out there that same twenty five's close and to get this panel to say eight hundred five to nothing but we're asking you a lot of i mean i don't know what the panel thinks about it at this point but if i were judging the argument here that the panel's expressing concerns about that the age wasn't right here that you know that that there were some mistakes that were made and i guess i'll go if i were a betting person that doesn't sound good first saying eight but the court can handle it and say the error isn't harmless send it back look at her in the proper light without the errors and then what let it be what it is well your honor that's not exactly how harmless error analysis works for the carmichael case or in another context in the credibility context when you find errors in analysis the first thing you do is not send the case back to see what the l g thinks about the significance of those errors the first thing that you do is take the remaining analysis and say is that supported by substantial evidence do you think she was fairly evaluated do you think this person with the errors was fairly evaluated do we yes your honor substantial evidence supports the remaining jobs at step five because this court the favorable citation to johnson that ten thousand is a significant number there's a really have a recent case i think it's called  the twenty five thousand was significant and they did arrows and they said it was a close call and they ended and i did i'd also point out that eighteen thousand five hundred is much closer to twenty five thousand than it is to the number that this court  found to be not significant in bell tran one thousand six hundred eighty this case presents over ten times that amount of jobs so it's you know if you will ultimately may be right but we still it's better to have a complete administrative record as judge kill him just for we make that call i agree your honor that it would be better but that would be this would be a significant pronouncement from us whether we say it's enough or not enough i don't disagree your hon or but this court is required to do the harmless error analysis even if it might be better it would always be better for the judge prevail jay's decision to be perfect and without errors but in shinseki v sanders the supreme court that this court may not apply per se harmfulness as a rule this court must in every instance of error analyze whether that error is harmful so here what the court needs to do is to look at the jobs that remain after taking out the jobs that were erroneous lee relied on so even if a a fact finder could come to a different conclusion about that this court needs to harmless because substantial evidence still supports the remaining jobs under this court's precedent in here is relying on johnson and because this case is much more like here is than it is like bell tran i'd also like to make one point about miss little's age category they'll jay identified miss little's birthdate and said how old she was at the alleged onset date under this court's precedent in lockwood which is cited in my brief that's all that's required of the a l j there's no error in failing to discuss the possible application of borderline age categories as long as the category so by simply saying the person's age and stating the category that they fall into which they did here that is all that's required under lockwood there's no requirement that the algae conduct additional analysis like i considered whether to put this person into an older age bracket that is not an error under this court's published decision in lockers that your age bracket be at the onset or on the date of her age was the same  and seven months which is the same age bracket as when she was forty seven which at her alleged onset date she didn't change age categories prior to the l j decision could have applied an older bracket that's correct but by choosing not to the l j conducted all the analysis that's required under lockwood could you know but the court affirmed the district court's judgment because they'll g s decision remains supported by substantial evidence in spite of the errors thank you your honor is under marsh the court has to consider the nature of the error and that would require an investigation of the relevant details of the error the ninth circuit did consider johnson as authority in but didn't follow it and the johnson case from the tenth circuit had the claimant who was doing the actual job or holding that job already a younger person thirty six years old or younger than the claimant here so when age is an increasingly disadvantageous factor getting closer to age fifty the factual revel resolution is one better left to an l j really not a bad  because it left out limitations established in the record so it had to be sedentary so in effect here didn't really apply the borderline age because she thought there was a light r f c but even if we're light the limited education is getting close to illiterate which would have been a paid case even at light so there are subtle factors that would be facts and factors better evaluated by a nail j in the first instance so there should be remained for that basis ok the person approaches the next bracket is it simply optional for the g to look at the next spring if you were busy required to do so well it's funny now under the current poms or the new things they got to go through a set of factors at this point under lockwood my opponent is correct the mere citation of a birthday could be considered a full consideration of borderline age but here the relevant numbers would still be a factual determination that would require a a l j as a fact finder because of the other vocational factors and because the sedentary r f c was established so they've changed they've changed the rules about well they've changed their p