Sarahrose Kilpatrick v. Kilolo Kijakazi
35 F.4th 1187
9th Cir.2022Background
- Sarahrose Kilpatrick applied for SSDI and SSI in 2015, alleging lumbar degenerative disc disease, obesity, and carpal tunnel; claims denied initially and on reconsideration.
- Hearing (July 2018): impartial vocational expert (VE) D.T. North testified three representative jobs existed nationally for Kilpatrick (usher, children’s attendant, sandwich board carrier) and provided full‑time job estimates.
- Kilpatrick’s attorney, Timothy Anderson, cross‑examined the VE, then filed a post‑hearing letter using 2011 OES data and a “straight‑line” method to produce much lower full‑time job counts for the same DOT occupations.
- ALJ admitted Anderson’s letter into the record but did not discuss it; ALJ found Kilpatrick had RFC for light work and—relying on the VE—concluded jobs existed in significant numbers, denying benefits.
- Appeals Council denied review; district court affirmed; on appeal Kilpatrick argued the ALJ erred by failing to address the counsel’s competing job numbers and resolve the conflict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ erred by relying on VE job numbers without addressing counsel’s competing post‑hearing job estimates | Kilpatrick: ALJ had to resolve conflicting job numbers and explain rejection of counsel’s estimates | Commissioner: ALJ may rely on qualified VE testimony; need only address competing evidence that is "significant probative" | Court: No error — ALJ need address only significant probative competing evidence; counsel’s submission was not significant probative evidence |
| Whether Buck v. Berryhill imposes a categorical duty to resolve any divergence between VE and other job estimates | Kilpatrick: Buck requires ALJs to resolve conflicts whenever alternative job numbers are presented | Commissioner: Buck is limited to striking discrepancies that qualify as significant probative evidence | Held: Buck does not create a categorical rule; it applied where competing evidence was plainly significant and used similar methodology |
| Whether counsel’s OES-based “straight‑line” method produced significant probative evidence | Kilpatrick: Anderson’s calculations showed far fewer jobs and should be considered | Commissioner: Method lacks foundation, used outdated data, and assumes equal distribution across DOT titles — not reliable | Held: Methodologically flawed and conceded by Anderson to be imprecise; not significant probative evidence, so ALJ need not discuss it |
| Whether ALJ violated SSR 00‑4p by not reconciling VE testimony with other occupational data | Kilpatrick: Failure to reconcile raised procedural error | Commissioner: ALJ asked VE about DOT conflict and VE said none; only conflict was with counsel’s unsupported submission | Held: No SSR 00‑4p violation — ALJ satisfied rule by inquiring about DOT conflict and VE’s testimony was consistent with DOT; counsel’s letter did not trigger additional duty |
Key Cases Cited
- Buck v. Berryhill, 869 F.3d 1040 (9th Cir. 2017) (remand required where competing job estimates from counsel and VE were strikingly divergent and relied on similar methodology)
- Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (VE testimony can constitute substantial evidence even without production of underlying data)
- Ford v. Saul, 950 F.3d 1141 (9th Cir. 2020) (a qualified VE’s testimony is ordinarily sufficient at step five)
- Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393 (9th Cir. 1984) (ALJ must explain rejection of significant probative evidence)
- Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005) (VE’s expertise provides necessary foundation for testimony)
- Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018) (criticizing equal distribution method of allocating OES totals across DOT titles)