it please the court my name is greg wallace and i represent christopher stanton in the so security disability appeal now the issue in this case is whether the ayles jury's decision should be affirmed when it is based on an unresolved conflict between the testimony of the vocational expert and the dictionary of occupational titles now the commissioner has set a policy in social security ruling over four p that enable j may not rely on of the east testimony if a apparent unresolved conflict exists between that testimony and the jobs description in the d o t what's the significance of that ruling on os well in recent years this court has under case dealing with conflicts regarding overhead reaching just this past february this court in thomas first is very healed hell that there was an apparent unresolved conflict when a ve testified that a claimant who was limited to level one reasoning could handle a job that the d o see the o t says requires a level three reasoning our wheat bound by the ruling of the social sick as you're right you're absolutely right that our case law seems to seems to rely on that ruling in a number of number of different cases but are we bound by that ruling it seems to address al jazz i'm just wondering if we're if we're bound by that ruling well i would say you're bound by the precedent in this court that has in force that ruling capricious ruling yes your honor the obviously the court doesn't get to make up its own administrative rules it follows the policy set forth by the commissioner and holds the administrative law judge to following those policies and so in this case we have a very similar case to the thomas forces berryhill decision in february where in this case the ve limited i mean the limited these consideration to jobs that require only simple one to two step instructions which corresponds to reasoning level one in the d o t the testify i though that mr stanton can perform the job hospital industrial cleaner which the d o t says is only performed at reasoning level two which requires the ability to follow understand follow remember detailed to a different version of the questions i was asking earlier which is if you apply just plain old substantial evidence which is what congress has asked us to apply you look at that you look at the record you say wow there's a vocational expert who said that he could do this job and you you had the judge and i believe in said you know can he do this particular job and the case of oxford that yasser even even inquired i think about the dictionary of occupational titles normally you would say that substantial evidence so why is it that  we elevate this ruling we talk about this ruling and say wow even though it otherwise be substantial evidence it's not because there's a failure to resolve the conflict in accordance with what the social security ruling sure and i think there are two answers that question the relied on to determine that there was other work in the economy that mr stanton can perform comes in the form of this vocational expert testimony if that testimony is in valid because there is an unresolved conflict between the east testimony and the dictionary of occupational titles as the the standard authority in this area then the able j does not have substantial evidence upon which to base that step five determination that is that mr stanton is not is not disabled because he can perform other work in the economy would that be true even in the absence of the ruling so say the ruling doesn't exist we have the exact same record we have here what would your argument be the exact same and the absence of that social security ruling this court has a has a long history precedent saying that conflicts when there is a conflict between the dictionary of occupational titles and  we have a conflict here the conflict isn't let me ask you this yes you know we have all these cases that say that the deity is not necessarily a precise statement of what the person must do in the job it's the maximum possible for the category you're familiar with those guys and here we have the experts saying he also invokes his experience right he experience these two jobs that he mentioned can be performed at somewhere below the maximum that set forth in the d o t such that mr i mean what's wrong with that very well first of all i think he had a coherent i mean he relied on his experience in the d o t obviously the maximum d o t isn't consistent with the one and two step reasoning but not every job in the category requires the max well i think the first response to that is that judge arnold's opinion in the thomas vs burial case just two months ago foreclose that that was the very argument that the commissioner made in that case that the d has generic job descriptions that cover a range of requirements and judge arnold said that's that argument doesn't work in this particular case when we have a categor e to give an explanation and resolve the conflict simply saying well i'm relying on my experience doesn't tell us anything other than he's relying on his experience but is he may be wrong about that he may not have could just ask the question in south and that's a good question but at step five the o j is the one that poses the hypothetical to the the burden is on the government to produce evidence that there is other job there are other jobs in the economy that mr stanton can perform and so securely ruling over for p as well as this court precedent president from other courts like the fourth circuit the pearson case squarely placed the j resolved you know they had a bad experience as well as you know i've been doing this a long time and and i think that being a cleaner is something that would fall within as within this particular person's capabilities and therefore here's the reason  the court jim sides for the commissioner of social security administration in mr stanton's brief the argument was deceptively simple one does not equal to and if it were that simple we wouldn't even be here today because there are eight hundred twenty one occupations in the d o t across all exertional levels that are there are one level so there would be a sufficient number of or one occupation upon his experience but the problem is there's there's a variation between i mean even the basic description of one the two level reasoning versus detailed reasoning seems to me that those two things are are inconsistent at least residual functional capacity finding actually overlapped are one and are two of course there is within the reasoning level just our one and our two are the very lowest level of reasoning and they represent an educational development that is that an elementary school education type level and there are two different aspects of the definition of reasoning level one includes instructions and the other one is variables and the ale days residual functional capacity in this case addressed not only one or two step instruction but also included variables that there would be few variables and the instructions or the supervision would be concrete well under our two part of the definition the second s definition of our two includes a few concrete variables so a few variables then the l g s are if c fits within the reasoning level to definition and so here we are today where you are reaching into definitions paul wayne segment of a definition from our won a segment of a definition from our two and that's really not the the the rationale that went into the commissioner adopting this r s zero zero dash for p it's not drilling down into the minutia and trying to find a conflict there is a threshold question that must exist there must be an apparent conflict and if there is not an apparent conflict then there is no duty that for the vocational expert to explain why there is no so it actually would follow it is not unreasonable that a vocational expert could testify that an r f c that overlaps are one in our to that that individual could perform an occupation as that's always true though i mean i'm i'm new at this but isn't that always true that there is going to be some overlap because each each each step from what i can tell you seem to add a little bit to the previous step and become a little more complex so it's not always true that there be some overlap between the  but there is an overlap in the residual functional capacity findings there is the one or two step instructions which that's the first sentence of our one but there's also few variables which is  sentence of the r two definition now where does few variables come in from the expert that part of the hypothetical yes your honor that would be the hypothetical question that is asked of the vocational that mr stanton could perform the job of hospital cleaner or industrial claim was based upon his hypothetical question which was followed the sea finding so even though you you can't turn to the transcript and read exactly what the question was because there is a short in audible section the decision explained that his hypothetical question may or the  twenty five years of experience in vocational rehabilitation counseling placing the impaired and disabled individuals into jobs and this individual heard the hypothetical question was present at the hearing heard all the testimony reviewed all of the vocational information that was in the record and at the conclusion testified that mr stanton could perform the job of hospital for pete does not require dale judy to explain why there is no conflict if we were to agree with your position what do we do with thomas versus barry hill billy simply say there's no conflict here as you're suggesting and say that makes it different than it involved in issue of our one r f c versus in our three occupation the court wasn't really concerned with considering whether there was any overlap you know i think if you look at the r f c in the thomas case is probably fairly similar to the r f c in this case however since the court was not having to determine the job that was listed by the vocational expert was in our three occupation which actually requires several areas and they're not just in congress under the few variables point finding that says that supervision must be simple direct and concrete and both the few variables concrete variables those are elements of the second sentence of the reasoning to level if there are no further questions the commissioner would respectfully request that this support firm the commissioner's final decision all right thank you  wallace will hear from you in rebuttal may please the court just because mr stanton can perform a couple of the requirements of reason a level three doesn't mean there is no conflict the commissioners argument is missing the critical explanation that the ve didn't provide the l j didn't provide and now the commissioner has not reviewed how can a person who can only perform simple one or two step instructions perform a job that requires detailed work instructions but that raises an interesting point does the vienna this may be one of the problems i have with the ruling itself does the v after resolve every conflict in other words need multiple aspects to a particular level and it resolves for the five but the fifth one doesn't get resolved too bad so sad got to send it back down to what do we balance things out and say look it's close enough well i think that when we're dealing with so surely ruling over for p and this course precedent there's no indication that close enough is ok there is still an  apparent unresolved conflict here between simple wanting to step up and detail doesn't matter everything else doesn't matter there that conflict remains it survives everything that the commissioner just told you and the commissioner h offered still no explanation for how that conflict is resolved thank you very well thank you both for your arguments the case is submitted in the court file an opinion in due course