44 F.4th 828
9th Cir.2022Background
- Tyrone White was shot; a bullet fragment in his S1 vertebra caused left-leg atrophy, chronic pain, and limits on sitting, standing, and walking.
- At an ALJ hearing a vocational expert (VE) testified that White could do three representative sedentary, unskilled jobs and estimated large national job counts for each (table worker ~72,000; assembler ~65,000; film touch-up inspector ~32,000), relying on SkillTRAN.
- White’s attorney later submitted Job Browser Pro (SkillTRAN) screenshots to the Appeals Council showing far lower counts for the same DOT codes (2,957; 0; 1,333 respectively) and argued the VE’s numbers were inflated.
- The Appeals Council made White’s submission part of the record but denied review without remanding to the ALJ to resolve the discrepancy; the district court granted summary judgment to the Commissioner.
- The Ninth Circuit reversed and remanded, holding that under Buck v. Berryhill the agency must address striking discrepancies between VE job estimates and competing estimates submitted to the Appeals Council.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must the ALJ/agency resolve a stark discrepancy between VE job numbers and competing estimates submitted to the Appeals Council? | White: the large divergence (same DOT codes, same software) is significant and probative; ALJ must address it. | Commissioner: VE testimony was relied on at hearing and constituted substantial evidence; no remand needed. | Reversed — remand required so the ALJ can address and resolve the inconsistency (applying Buck). |
| Was White’s submission to the Appeals Council proper and material? | White: good cause to submit post-hearing; Job Browser Pro estimates are material and could change outcome. | Commissioner: Appeals Council considered but declined to change decision. | Held for White — Appeals Council made the evidence part of the record and the discrepancy must be addressed. |
| Does Biestek allow VE job-number testimony to stand even if underlying data aren’t disclosed? | White: yes, but Biestek does not preclude agency duty to resolve strikingly conflicting, same-source estimates. | Commissioner: Biestek permits VE testimony as substantial evidence without disclosure of non-public data. | Held: Biestek remains good law, but where competing estimates are significantly discrepant and probative, the agency must resolve the conflict (Buck governs). |
Key Cases Cited
- Buck v. Berryhill, 869 F.3d 1040 (9th Cir. 2017) (ALJ must address striking discrepancies between VE and claimant job estimates)
- Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (VE testimony can support a finding of no disability even if VE does not disclose nonpublic underlying data)
- Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2017) (challenge to VE job numbers must be raised during administrative proceedings to preserve it)
- Kilpatrick v. Kijakazi, 35 F.4th 1187 (9th Cir. 2022) (ALJ need only resolve job-number inconsistencies that are significant and probative)
- Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519 (9th Cir. 2014) (job counts in the low tens of thousands may be a close call for significance)
- Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018) (criticizing DOT reliance and recognizing Job Browser Pro as a common vocational tool)