[00:00:02] Speaker 02:
May it please the court, Lawrence Rolfing, on behalf of Christopher O'Brien.

[00:00:10] Speaker 02:
This is round two.

[00:00:14] Speaker 02:
The case was fully briefed quite some time ago.

[00:00:16] Speaker 02:
It was argued last year in front of 2 thirds of a different panel last year.

[00:00:21] Speaker 02:
The preliminary questions are,

[00:00:27] Speaker 02:
And Mr. O'Brien even raised the issue of a defective finding, a defective affirmative finding in the ALJ decision.

[00:00:36] Speaker 02:
And the answer is yes.

[00:00:40] Speaker 02:
There was no invitation of error.

[00:00:42] Speaker 02:
There was no stipulation of what was and was not past relevant work.

[00:00:46] Speaker 02:
The judge just made a finding.

[00:00:48] Speaker 02:
It didn't really explain the finding.

[00:00:50] Speaker 02:
Delete the word really.

[00:00:51] Speaker 02:
Didn't explain the finding at all.

[00:00:54] Speaker 02:
He just concluded that there was past relevant work, and O'Brien could still perform that work.

[00:01:01] Speaker 02:
The commissioner and the district court agreed that one of the jobs didn't count because it was too skilled and required door-to-door sales, and that's not something that he could do with his residual functional capacity.

[00:01:15] Speaker 02:
The other, John.

[00:01:17] Speaker 01:
I think you're going to run into a Menel and Shibie problem.

[00:01:21] Speaker 01:
So tell me what your best argument is with regard to those cases.

[00:01:25] Speaker 02:
I actually know those cases quite well, Your Honor.

[00:01:28] Speaker 02:
In Menel, Bertha Menel, the intrepid attorney in that case went to district court and looked at it and said,

[00:01:38] Speaker 02:
The attorney that handled the hearing blew it.

[00:01:41] Speaker 02:
And so he, being me, thought, I'll just submit the data that everybody relies upon.

[00:01:47] Speaker 02:
And it's clear that these jobs don't exist in the numbers suggested.

[00:01:52] Speaker 02:
And the district court and this court said, you can't do that.

[00:01:56] Speaker 02:
You can't submit new evidence to rebut the vocational expert.

[00:02:02] Speaker 02:
And so when Shahibi, Majid Shahibi's attorney also blew it before the administrative law judge in the agency and the intrepid lawyer, me, decided, well, this doctrine of administrative notice has five examples.

[00:02:19] Speaker 02:
I'll just use the five examples to prove that leaf tires in the tobacco industry don't exist in significant numbers because the tobacco industry actually

[00:02:28] Speaker 02:
doesn't exist in California and doesn't exist in significant numbers nationwide when you consider the entirety of the tobacco manufacturing industry.

[00:02:40] Speaker 02:
And this court said, no, you can rely on the DOT when you get to district court, but you can't rely on county business patterns.

[00:02:49] Speaker 02:
So you can't rely on the Occupational Alican book.

[00:02:53] Speaker 02:
Well, Brian doesn't rely on anything new.

[00:02:56] Speaker 02:
He is relying on what is in the record before the ALJ and says, on the record, that was what was before the ALJ does not provide an evidentiary basis that satisfies the legal standard of what is and is not past role in the work.

[00:03:14] Speaker 02:
Maino and Chaibbi are new evidence cases.

[00:03:17] Speaker 02:
This is not new evidence.

[00:03:19] Speaker 02:
This is the judgment of finding that he could be a telemarketer

[00:03:24] Speaker 02:
And when O'Brien worked as a telemarketer, it never rose to substantial gainful activity.

[00:03:30] Speaker 02:
It never did.

[00:03:31] Speaker 02:
Not on this record.

[00:03:33] Speaker 04:
So what evidence in the records suggests that O'Brien worked as a telemarketer for four months in 2009?

[00:03:44] Speaker 02:
That's my question.

[00:03:46] Speaker 02:
Yeah.

[00:03:54] Speaker 02:
That's on page 259 of the administrative record, Your Honor.

[00:03:57] Speaker 02:
And he says he worked from January 2009 to April 2009.

[00:04:04] Speaker 03:
But elsewhere, he also described that as three months.

[00:04:06] Speaker 03:
And it makes a difference, because if it's three months, it changes the denominator versus four.

[00:04:12] Speaker 03:
And you either go over the level or under the level.

[00:04:14] Speaker 03:
So which is it?

[00:04:16] Speaker 03:
He said three, but it also could be construed as four.

[00:04:20] Speaker 03:
So what is it?

[00:04:22] Speaker 02:
Yeah.

[00:04:24] Speaker 02:
Mr. O'Brien, how long did you work as a telemarketer?

[00:04:27] Speaker 02:
Well, I got fired because it says he was terminated three months later.

[00:04:31] Speaker 02:
That's what three months means.

[00:04:32] Speaker 02:
It means three months later.

[00:04:34] Speaker 02:
That's how people talk.

[00:04:35] Speaker 02:
That's how ordinary human beings talk.

[00:04:39] Speaker 02:
In Alaska and in this court, in Molina and other cases, we have this doctrine that we excuse missteps by professional ALJs because we can discern what they really meant.

[00:04:52] Speaker 02:
And I would suggest that when you have a lay person that isn't a sophisticated person, and he says, I worked from January to April, and that's three months, it's like I can easily discern what you really meant.

[00:05:08] Speaker 02:
Because January is three months later, or April is three months later than January.

[00:05:17] Speaker 02:
Did he mean that he worked for three months?

[00:05:20] Speaker 02:
Well, January to April is about working three months.

[00:05:24] Speaker 02:
Did he work in three months, which is what the commissioner's ruling says?

[00:05:28] Speaker 02:
Did we look at the number of months that you worked in?

[00:05:31] Speaker 03:
Well, what's the rule?

[00:05:33] Speaker 03:
Are we supposed to suppose it's January 15th to April 2nd?

[00:05:38] Speaker 03:
Do we add up the days, and that's how we do the denominator?

[00:05:41] Speaker 03:
How does it work?

[00:05:43] Speaker 02:
In the quest for administrative regularity and to make it easy so that we're not counting days, the commissioner says we count the months that you actually work in.

[00:05:54] Speaker 03:
So one day in a month counts as a month?

[00:05:58] Speaker 02:
Yes.

[00:05:59] Speaker 03:
What document establishes that rule as an administrative matter?

[00:06:08] Speaker 02:
That would be Social Security ruling

[00:06:12] Speaker 02:
83 63 and 82 62 62 82 63 I mean I'm sorry 82 62 82 62 right and so

[00:06:30] Speaker 01:
What do we make of the conflict in the record?

[00:06:33] Speaker 01:
Because on the one hand, as you point out, he claims to work between three and four months.

[00:06:39] Speaker 01:
But on the other hand, he also said he worked 40 hours per week earning $11 per hour, which is like $1,900 plus change or so.

[00:06:48] Speaker 01:
Do we still, in that instance, vacate and remand because it was up to the ALJ to explain that conflict?

[00:06:55] Speaker 01:
Or do we say, well, this is his testimony, so taking

[00:06:59] Speaker 01:
him at his word, 40 hours per week, $11 per hour.

[00:07:03] Speaker 01:
We do the math that way.

[00:07:05] Speaker 02:
Two responses, Judge.

[00:07:07] Speaker 02:
Yes, we remanded.

[00:07:10] Speaker 02:
And the why is the most important part.

[00:07:14] Speaker 02:
The earnings record, the detailed earnings query, the summary earnings query, the certified administrative records, those are presumptively accurate.

[00:07:24] Speaker 02:
Under the regulations,

[00:07:27] Speaker 02:
I don't have the citation of the regulation off the top of my head.

[00:07:30] Speaker 02:
The earnings records that are reported, the employer files a W3 with the IRS, the IRS transmits that information to SSA, and SSA drops that information into a certified earnings record, and a detailed earnings query, all that information's there.

[00:07:46] Speaker 02:
And the regulations say those earnings records are presumptively accurate.

[00:07:52] Speaker 02:
How do we rebut that presumption?

[00:07:54] Speaker 02:
Well, I worked 40 hours a week and I made $12 an hour.

[00:07:57] Speaker 02:
That doesn't cut it.

[00:07:58] Speaker 02:
What would cut it would be, did you work under the table at that job?

[00:08:02] Speaker 02:
No.

[00:08:04] Speaker 02:
Then it's not rebutted.

[00:08:06] Speaker 02:
Did you get paid off the record for any of those jobs?

[00:08:13] Speaker 02:
Well, if there's no evidence of that, then the presumption prevails.

[00:08:17] Speaker 02:
The presumption remains in place.

[00:08:23] Speaker 03:
I'm looking at ruling 82-62, and what it says for duration, it says, duration refers to the length of time during which the person gained job experience.

[00:08:37] Speaker 03:
It should have been sufficient for the worker to have learned the techniques, acquired information, developed the facility needed for average performance in the job situation.

[00:08:47] Speaker 03:
The length of time this would take depends on the nature and complexity of the work.

[00:08:50] Speaker 03:
That's all it says.

[00:08:51] Speaker 03:
I don't see anything about if there's any day in a calendar month that calendar month counts.

[00:09:05] Speaker 02:
I misspoke.

[00:09:17] Speaker 02:
It's 8335 and it's described at the bottom of page 26 and on page 27.

[00:09:46] Speaker 02:
8335 yes, this is When employees earnings or work activities very somewhat from month to month it may be necessary to average countable earnings over a number of months in order to compare those earnings

[00:10:00] Speaker 02:
with the applicable monthly amount in the earnings guidelines.

[00:10:03] Speaker 02:
Generally, such earnings are averaged over the entire period of work requiring evaluation.

[00:10:11] Speaker 04:
But how does that tell us that the entire period should include, for instance, an entire calendar month if you only work on the first day of that month versus just counting up the actual days?

[00:10:27] Speaker 04:
I'm still confused.

[00:10:29] Speaker 02:
I agree, Your Honor.

[00:10:30] Speaker 02:
But there's no evidence that he stopped on April 1st, and there's no evidence that he started on January 31st.

[00:10:36] Speaker 02:
The evidence isn't there, and the judge didn't make a finding that I'm counting three.

[00:10:43] Speaker 04:
Except for his statement that he worked for three months.

[00:10:45] Speaker 02:
Because that's how people talk in the vernacular.

[00:10:48] Speaker 02:
That is how people express their times.

[00:10:52] Speaker 02:
My mother says he worked from January to February, February to March, and March to April.

[00:10:55] Speaker 02:
That's three.

[00:10:56] Speaker 02:
That's how my mother talks.

[00:10:58] Speaker 01:
I think the problem is that he said a lot of different things and they're not consistent and somebody has to sort that out and I don't know how it's sorted.

[00:11:08] Speaker 01:
I don't know how we do it in the first instance at the pellet level at this point.

[00:11:12] Speaker 02:
Because it isn't sorted out.

[00:11:14] Speaker 02:
That's the problem.

[00:11:15] Speaker 02:
The judge is vested with discretion to make these kinds of factual determinations, and we don't do it by a fudge.

[00:11:22] Speaker 01:
No, I understand.

[00:11:23] Speaker 01:
I understand the argument.

[00:11:24] Speaker 01:
You're now over time, but let me give you a couple of minutes back for rebuttal.

[00:11:29] Speaker 02:
Thank you.

[00:11:46] Speaker 00:
Good morning, Your Honor.

[00:11:47] Speaker 00:
Shay Bond on behalf of the Commissioner of Social Security.

[00:11:50] Speaker 00:
I think really the focus of this panel is what was actually said about the time frame that the claimant did this work.

[00:11:57] Speaker 00:
I'm sorry.

[00:11:57] Speaker 00:
Can you speak up?

[00:11:58] Speaker 00:
I apologize, Your Honor.

[00:11:59] Speaker 00:
I'll lean over this way.

[00:12:01] Speaker 00:
I believe the panel's concern seems to be focusing on what period of time did the claimant perform this work in 2009.

[00:12:08] Speaker 00:
And it's our position that the claimant's statement that he did it for three months is clear and conclusive.

[00:12:16] Speaker 01:
Well, it's not so clear to me because he said other things as well.

[00:12:20] Speaker 01:
He said he worked between January and April, whether that's three or four months is subject to reasonable debate.

[00:12:30] Speaker 01:
The fact that we've spent a lot of time today, and you did last time as well, just talking about, is it three months?

[00:12:36] Speaker 01:
Is it four months?

[00:12:38] Speaker 01:
Are people speaking colloquially or is there a rule that tells us how to

[00:12:42] Speaker 01:
how to dictate or calculate that time frame.

[00:12:45] Speaker 01:
That's very confusing to me.

[00:12:47] Speaker 01:
But on top of that, he also said he worked 40 hours per week, earning $11 an hour.

[00:12:52] Speaker 01:
And then he also said he stopped working on June 5, 2009.

[00:13:00] Speaker 01:
So that would be five months of work.

[00:13:04] Speaker 01:
Then if my calculation is correct, that's only $630 per month.

[00:13:11] Speaker 01:
I think it's the ALJ's job to sort out all of those inconsistencies so that we can figure out the basis on which the ALJ made that determination, isn't it?

[00:13:20] Speaker 01:
So with that conflicting evidence, what are we supposed to do about that?

[00:13:23] Speaker 00:
Well, I'm going to push back a little about saying that it's conflicting evidence because I think that the claimant statement that he did it for three months within this, he started sometime in January, it ended in sometime in April, but then he clarifies and says it was a total of three months.

[00:13:39] Speaker 00:
Now, I know Mr. Rolfing is saying that, you know, we talk colloquially and say that, you know, three months actually means more.

[00:13:46] Speaker 00:
But I would submit that if the claimant actually meant that he worked more than three months, he could have made that clarification in a variety of ways.

[00:13:52] Speaker 00:
He could have said, I worked three to four months.

[00:13:55] Speaker 00:
I worked over three months.

[00:13:57] Speaker 00:
I worked between three and four months.

[00:13:59] Speaker 00:
But when he wrote down that statement and said it was three months, that's definitive.

[00:14:05] Speaker 03:
What's your response to the

[00:14:09] Speaker 03:
reliance on social security ruling 83-35, because I'm looking at that one, and it does have multiple examples about how to do it.

[00:14:19] Speaker 03:
And they actually do the income for each month, the different amounts, and then you add them up and divide by the number of months.

[00:14:29] Speaker 03:
That's how it's shown in every example, which does support his idea that if there's any income in that month, you just list that for that and then divide.

[00:14:38] Speaker 03:
that would give us four here, even if the actual temporal period was three months in length, that would give us four.

[00:14:46] Speaker 03:
So why isn't he right on that argument?

[00:14:49] Speaker 00:
Well, I think 83-85 talks about different kinds of scenarios about when you would have to average, when it's more unclear about when the period of time or which the claimant has worked, but that SSR also says that when you have an actual discrete period of time, you average it over

[00:15:05] Speaker 00:
the actual time.

[00:15:07] Speaker 00:
And so here we have a claimant saying, I worked three months, so we would average it over the three months because we know it's a quantifiable time period.

[00:15:16] Speaker 01:
So we take the testimony and we disregard the reporting on the disability report?

[00:15:23] Speaker 01:
I'm sorry, could you repeat that?

[00:15:24] Speaker 01:
We take the testimony of three months and we disregard the reporting on the disability report?

[00:15:30] Speaker 00:
Which disability report are we talking about?

[00:15:32] Speaker 01:
The one that says he stopped working in June.

[00:15:34] Speaker 00:
Do you have a record site for that?

[00:15:36] Speaker 01:
255.

[00:15:38] Speaker 01:
Thank you.

[00:15:38] Speaker 01:
ER255.

[00:15:40] Speaker 01:
When did you stop working?

[00:15:42] Speaker 01:
Month, day, year.

[00:15:43] Speaker 01:
June 5, 2009.

[00:15:45] Speaker 01:
Why did you stop working?

[00:15:46] Speaker 01:
Because of my conditions.

[00:15:50] Speaker 00:
I'm not sure what work that might be referring to, but if we're talking about the claimant has- Right, it's 2009, which is why I associate it with the telemarketing.

[00:16:02] Speaker 00:
Right.

[00:16:05] Speaker 00:
I'm not sure if that refers to his specific telemarketing work, but when he did fill out his work history report specifically and was asked to delineate each of the occupations that he had performed during specific discrete periods of time, he listed it down as actually January to April, and then said it only lasted three months.

[00:16:26] Speaker 00:
So this might be a stray comment, and I think I would, you know, let's- But the date is so specific.

[00:16:33] Speaker 00:
June 5, 2009.

[00:16:34] Speaker 00:
It does look specific, but I would say that the more definitive statement from the claimant is going to be in the work history report where you actually outlined that work.

[00:16:45] Speaker 00:
And I would point out that the vocational expert also looked at the records and completed prior to the hearing, and this is at record 373,

[00:16:55] Speaker 00:
I believe, outlining the work that the claimant had done.

[00:16:59] Speaker 00:
It's the telemarketing work.

[00:17:00] Speaker 00:
It was the sales position.

[00:17:01] Speaker 00:
And also the claimant's work history reports at 2E and 4E.

[00:17:08] Speaker 00:
4E is the page 284 where the claimant said, I worked this for three months.

[00:17:13] Speaker 01:
No, I'm aware of that.

[00:17:15] Speaker 01:
I just don't know the significance of this reporting and whether we just disregard one, pick the other, or how we go about doing that.

[00:17:23] Speaker 00:
Well, I think it's significant, though, is that when the ALJ at the hearing asks the claims attorney whether there are any objections to the exhibits, the attorney said no.

[00:17:33] Speaker 00:
And I would submit that that was the time period at which if there was some sort of confusion or an ambiguity

[00:17:39] Speaker 00:
or an inconsistency, that would be the time that the claimant's attorney would have brought that to the ALJ's attention.

[00:17:47] Speaker 00:
And I would say, absent that, the ALJ would not think, given that you have the earnings record and then you have the claimant's definitive statement saying, I did this telemarketing work for a total of three months, why would there be any issue?

[00:17:59] Speaker 03:
But we've said that ALJs have an obligation, which isn't true in a lot of other administrative contexts, to develop the record

[00:18:06] Speaker 03:
in order to line it up with what the rules require.

[00:18:10] Speaker 03:
And so if the ALJ leaves things as an ambiguous mess, then maybe it needs to go back.

[00:18:15] Speaker 00:
And I would push back that we have an ambiguous mess here.

[00:18:19] Speaker 00:
And the reason is that, again, the ALJ asked claims attorney at the beginning of the hearing, do you have any objections to this exhibit list?

[00:18:27] Speaker 00:
And the attorney said no.

[00:18:29] Speaker 00:
So there's nothing signaling to the ALJ that there was anything amiss or ambiguous.

[00:18:33] Speaker 00:
And I would also note that this is on page 39 of the record.

[00:18:36] Speaker 00:
The ALJ said he was holding the record open for 30 days for submission of additional evidence.

[00:18:43] Speaker 00:
And I think that specifically was towards medical evidence, but the record was held open.

[00:18:47] Speaker 00:
So if we're talking about a duty to develop, claimant ultimately carries the burden of proof at step four to say that I don't have any past relevant work that I can perform.

[00:18:57] Speaker 00:
Given that the ALJ held the record open, that would have been an opportunity for claimant to submit anything else that they thought would have touched upon this issue, but didn't.

[00:19:06] Speaker 03:
And so... Can I ask you also, before your time runs out, to address the issue of forfeiture that the district court invoked based on the joint submission?

[00:19:19] Speaker 00:
Yes, so we had talked about that last time.

[00:19:22] Speaker 00:
There is persuasive authority from this court that forfeiture can attach at step four if the issues are not raised to the ALJ at the administrative hearing.

[00:19:31] Speaker 00:
I would also identify that the district court had cited the Matney case.

[00:19:36] Speaker 00:
That is a published case from 1992, I believe.

[00:19:39] Speaker 00:
which also had applied forfeiture in a situation where the claimant was challenging the SGA nature of the past relevant work and saying that the ALJ had not complied with our regulations and rulings, I think in explaining the step four finding.

[00:19:53] Speaker 00:
And they found that the issue had been forfeited because the issue had not been raised to the ALJ and also not to the district court.

[00:20:01] Speaker 03:
Now, I understand that we don't have the district court prong here, but I would submit that the fact that this court highlighted the fact that the claim... The district court did say that the failure to respond to the forfeiture argument that had been raised in the joint submission by the commissioner was a forfeiture

[00:20:22] Speaker 03:
another level of that argument in the district court.

[00:20:26] Speaker 03:
And that was the forfeiture I wanted you to address.

[00:20:29] Speaker 00:
Oh, I apologize.

[00:20:30] Speaker 00:
There's different layers of forfeiture here.

[00:20:32] Speaker 03:
No, I understand.

[00:20:33] Speaker 03:
There's the issue of, did you forfeit it based on what happened in front of the ALJ?

[00:20:37] Speaker 03:
Correct.

[00:20:38] Speaker 03:
But then when the government raised the issue of ALJ forfeiture in the district court,

[00:20:45] Speaker 03:
There wasn't a direct discussion of that in the reply portion of the joint submission, and the district court tagged that with a forfeiture.

[00:20:54] Speaker 03:
And normally, optional replies don't result in forfeiture, so I'm curious as to why you think that district court ruling of forfeiture was correct.

[00:21:06] Speaker 00:
Well, I don't think there's like a blanket rule that if an issue is not brought up in a reply brief or even a reply brief isn't filed at all, that there's like a blanket rule that there's forfeiture.

[00:21:15] Speaker 00:
But I think it's case specific and dependent.

[00:21:18] Speaker 00:
And so when the government had raised the specter of a forfeiture,

[00:21:21] Speaker 00:
that you forfeit this, and we do have circuit precedent, like Shia B. Menil, and the unpublished cases have applied this to step four, it would be — it would behoove the claimant to address that in a reply brief.

[00:21:34] Speaker 00:
And claimant did actually file a reply brief, but just ignored the issue entirely.

[00:21:38] Speaker 03:
So when the district court — Well, what he said was that, you know, this court sits in a quasi-appellate capacity.

[00:21:45] Speaker 03:
and it still has to examine whether or not there's substantial evidence to support the findings lined up against what the rules require.

[00:21:54] Speaker 03:
That could be read as a response to the forfeiture argument that you still have to do substantial evidence review based on the record that exists.

[00:22:07] Speaker 00:
That's all that's at issue in front of us, is it line up with the regs.

[00:22:14] Speaker 00:
The district court didn't just base their decision on forfeiture, it did go on to address the merits.

[00:22:18] Speaker 00:
But what I'm saying is that it was an appropriate statement from the district court to say that I'm taking into consideration that you did not even bother to address this issue that the government had raised in your reply brief, but then alternatively

[00:22:30] Speaker 00:
The district court is saying, I'm finding that substantial evidence on the merits supports this decision and that no additional articulation was required given that the statement from the claimant about, I did this job for three months was clear enough.

[00:22:45] Speaker 00:
There wasn't an ambiguity because that was the clarifying statement from the claimant.

[00:22:48] Speaker 00:
and once averaged, the earnings per month meet the SGA requirements and that is the substantial evidence in support of the ALJ's findings and that's what this court looks to.

[00:22:59] Speaker 01:
I know you're over time but let me give you a couple of extra minutes to address the other layer of forfeiture, the administrative forfeiture.

[00:23:05] Speaker 01:
Can you respond to

[00:23:07] Speaker 01:
your opposing colleagues' argument on administrative character and distinguishing cases like Mineo and Shibie on the ground that that's really a failure to present evidence.

[00:23:21] Speaker 00:
Well, we also cited

[00:23:22] Speaker 00:
In our brief, there was the Kennedy case, and that was a listings issue.

[00:23:26] Speaker 00:
And so, in that case, and Kennedy said, well, claimant didn't come up with any kind of plausible theory as to why the claimant had equal the listing.

[00:23:36] Speaker 00:
And so, that wasn't a presentation of new evidence, that was actually a presentation of the issue.

[00:23:40] Speaker 00:
So, I would say that, you know, while Shaibi and Meenal addressed specific scenarios where maybe there was new evidence being brought into the record, but that's not the exclusive way in which

[00:23:51] Speaker 00:
administrative forfeiture can attach.

[00:23:54] Speaker 00:
Which case are you relying on that doesn't involve presentation of evidence?

[00:23:58] Speaker 00:
It was the Kennedy case.

[00:24:00] Speaker 00:
It's cited in our brief.

[00:24:03] Speaker 00:
A published case?

[00:24:08] Speaker 00:
One moment, Your Honor.

[00:24:11] Speaker 00:
Kennedy v. Colvin.

[00:24:14] Speaker 00:
3 sorry 738 f 3rd 1172 and we had cited that for a proposition that You know this court has taken Litigants to task for not you know developing an issue administratively presenting a plausible theory about how you Equaled a listing and so I would say that doesn't go towards you know the submission of new evidence It's how you're bringing up an issue to an ALJ to explain your case

[00:24:40] Speaker 04:
Do we need to get to Kennedy, or are Meenal and Shaibii sufficient to hold that?

[00:24:48] Speaker 00:
I mean, they are.

[00:24:49] Speaker 00:
But if the question is how has this court applied administrative forfeiture ideas in the past, I would submit that Kennedy is an additional example.

[00:24:58] Speaker 03:
But with Meenal- What do you think is properly before us?

[00:25:01] Speaker 03:
Can we do substantial evidence review as to whether or not

[00:25:07] Speaker 03:
The ALJ's finding that he could perform this pass relevant work is supported by substantial evidence under the standards and the regulations.

[00:25:16] Speaker 03:
So are we barred from doing that?

[00:25:18] Speaker 00:
Well, I mean, that's our primary argument, is that this had been forfeited or waived.

[00:25:23] Speaker 00:
But if the court does reach to the- I want to understand what your argument is.

[00:25:26] Speaker 03:
So you're saying we cannot do the substantial evidence review that I just described.

[00:25:30] Speaker 00:
Well, given the limited scope of the issue that the claimant presented, I mean, there's nothing else that claimant is arguing about in this case.

[00:25:37] Speaker 00:
It's not like there's another layer of attack on the ALJ's decision, like the RFC finding.

[00:25:43] Speaker 00:
You know, that would be something that, you know.

[00:25:45] Speaker 03:
Correct.

[00:25:47] Speaker 03:
But can we perform substantial evidence review of the finding that he could do the telemarketing work?

[00:26:00] Speaker 00:
only if this court found that the claimant had not waived it, but that's not our position, if that's, I'm not sure if I'm answering your question, but.

[00:26:07] Speaker 03:
Well, I mean, because Nino and Shiebe involved development of evidence, and there may be

[00:26:12] Speaker 03:
times where you need to inject an issue into the case in order for the record to be developed.

[00:26:18] Speaker 03:
Here the issue was decided.

[00:26:20] Speaker 03:
The ALJ held this is prior relevant work that he could do.

[00:26:26] Speaker 03:
And you're telling us that we cannot review that for substantial evidence based on your view of forfeiture.

[00:26:32] Speaker 03:
That strikes me as an extraordinary position.

[00:26:35] Speaker 00:
Well, I would just say that under the facts of this case, given that the claimant's representative attorney had multiple opportunities to raise the issue specifically to the ALJ.

[00:26:44] Speaker 01:
But it's the record that we have, so I understand and share Judge Collins' concern, because the regulations do treat issues differently than the presentation of evidence, and for good reason, because this is not an adversarial process.

[00:27:00] Speaker 01:
It's not like the other cases that we review, right?

[00:27:05] Speaker 01:
Because the regulations are very stringent that if you've got evidence, you've got to present it, but issues, that's different.

[00:27:11] Speaker 01:
The issues of development, a lot of that really frankly is on the ALJ to develop.

[00:27:17] Speaker 00:
Well, and I would say with Sheeby and Aminul, it was a step five issue.

[00:27:22] Speaker 00:
Obviously, that was an issue that had been decided by the ALJ, and it was based on evidence in the record.

[00:27:27] Speaker 00:
So, I mean, it's not very different than that, like, conceptually, I would say.

[00:27:32] Speaker 01:
Right, I know.

[00:27:32] Speaker 01:
You cited Kennedy, and I have to say, off the top of my head, I can't remember what that was about.

[00:27:38] Speaker 01:
So, and whether it's more similar to Aminul and Sheeby or whether that presents a different situation, so we'll go back.

[00:27:45] Speaker 01:
look at that.

[00:27:46] Speaker 01:
But you're well over time.

[00:27:47] Speaker 01:
Let me see.

[00:27:47] Speaker 01:
Judge Thomas, do you have additional questions?

[00:27:50] Speaker 01:
Thank you very much for your very helpful argument today.

[00:27:52] Speaker 01:
I promise you, Mr. Roffing, some rebuttal time.

[00:27:57] Speaker 01:
So you may re-approach the lectern.

[00:28:01] Speaker 02:
Thank you.

[00:28:03] Speaker 02:
Circuit precedent that's not published is not precedent.

[00:28:05] Speaker 02:
It's just a memorandum disposition, and they're short on facts and they're short on analysis.

[00:28:10] Speaker 02:
So this Court, in

[00:28:15] Speaker 01:
Well, she cited Kennedy.

[00:28:16] Speaker 01:
Are you familiar with that?

[00:28:17] Speaker 02:
I am familiar with Kennedy.

[00:28:18] Speaker 02:
I actually argued that case, too.

[00:28:21] Speaker 02:
Kennedy was a man with low IQ, and he had avascular necrosis of the hip.

[00:28:27] Speaker 02:
And the argument was that his avascular necrosis of the hip was so severe that it substituted for their findings.

[00:28:33] Speaker 02:
And the court said,

[00:28:35] Speaker 02:
under our case law, and this is Marcia versus Sullivan is the root, is the original case for these propositions about the listings, is that because of the unique nature of the listings issue and equaling a listing, if you want to raise an equals issue, you have to tell the judge that you think that an equals issue exists, because the equals issue

[00:28:59] Speaker 02:
is fundamentally different.

[00:29:02] Speaker 02:
It is a nuanced argument, and that's what Kennedy stands for.

[00:29:06] Speaker 02:
It's not a determination that an ALJ can't even make an equals decision unless there's a medical expert that says he equals.

[00:29:18] Speaker 03:
Was there, as you're describing it, was there an equal, did the ALJ make any ruling with respect to the equals issue in Kennedy?

[00:29:26] Speaker 02:
It's part of the findings integrated template.

[00:29:28] Speaker 02:
The decisions are all relatively similar formatting and the step three finding always says he does not meet or equal a listing.

[00:29:35] Speaker 02:
And because the state agency, the DDS doctors, always say he does not meet or equal a listing.

[00:29:42] Speaker 02:
And so there's, equaling is a, equaling requires medical evidence of a doctor saying this person equals a listing.

[00:29:52] Speaker 02:
And I just wanna, I wanna zone in on this idea about admitting evidence into the record.

[00:30:02] Speaker 02:
Admitting evidence into the record that is minimally probative does not mean that there's no conflict in the record.

[00:30:08] Speaker 02:
And whether evidence, if I don't object to evidence in a jury trial, am I precluded from arguing that that evidence is not persuasive, it's not substantial, the jury should disregard it?

[00:30:23] Speaker 02:
Of course not.

[00:30:24] Speaker 02:
I've always preserved that argument.

[00:30:27] Speaker 02:
In the administrative context with 30-minute hearings, is there time in an administrative hearing to go through and make all those findings?

[00:30:34] Speaker 02:
No.

[00:30:35] Speaker 02:
Does the agency ask,

[00:30:37] Speaker 02:
the representatives, the professional representatives at the hearings, give us a proposed decision and make proposed findings at steps one through five of the sequential evaluation process.

[00:30:50] Speaker 02:
No.

[00:30:51] Speaker 02:
That would be invited error if that happened, but it doesn't happen.

[00:30:55] Speaker 02:
What happens is the judges have the hearings and they take testimony and in their

[00:31:02] Speaker 02:
Uh, answering brief, the government said, well, the vocat- the judge asked the vocational expert about past relevant works.

[00:31:08] Speaker 02:
Like, actually, he didn't.

[00:31:10] Speaker 02:
Judge Lissecki asked the vocational expert about past work, not about the legal conclusion of relevance.

[00:31:16] Speaker 02:
Judge Lissecki left the legal conclusion open, and it needs to go back to Judge Lissecki so he can close the circle.

[00:31:22] Speaker 02:
Thank you.

[00:31:23] Speaker 01:
All right.

[00:31:23] Speaker 01:
Thank you very much, counsel, to both sides.

[00:31:25] Speaker 01:
The matter just argued is submitted, and the decision will be issued in the normal course of business.

[00:31:32] Speaker 01:
Court is adjourned for the day.

[00:31:34] Speaker 01:
Thank you.

[00:31:34] Speaker 01:
Thank you very much.

[00:31:43] Speaker 01:
This court for this session stands adjourned.