We had a good session for the NOSSCR webinar. Here is the post-session Q&A:
Q&A:
1.
919.663-022 ESCORT-VEHICLE DRIVER (motor trans.)
At a hearing held 2 days ago, the V W testify this job was sedentary. I
argued in light of the use of foot pedals this job would be light. V W
disagreed.
The DOT does classify ESCORT-VEHICLE DRIVER as
sedentary. The ORS data says that 97% of
jobs require medium or heavy exertion.
The remaining 3% are light or sedentary.
JBP estimates 34,000 jobs but over half are self-employed.
2.
I just had a hearing today where the VE
testified that she relied on JBP and did not consult any other resources. I objected
based upon the reasons you just set forth.
Under Purdy v. Berryhill, 887 F.3d 7, 14 (1st Cir.
2018), that is sufficient.
3.
Name of 11th Cir case, too, please?
Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1282
(11th Cir. 2020).
4.
I am in the process of submitting a post-hearing
memo based upon your BLOG that this job is updated ...Escort-vehicle driver is
a light truck driver occupation (SOC 53-3033). Do you have additional evidence
I could use?
The DOT does classify ESCORT-VEHICLE DRIVER as
sedentary. The ORS data says that 97% of
jobs require medium or heavy exertion.
The remaining 3% are light or sedentary.
JBP estimates 34,000 jobs but over half are self-employed.
5.
what is a well accepted methodology
One that a significant number of vocational witnesses would
agree is reliable. Purdy v. Berryhill,
887 F.3d 7, 14 (1st Cir. 2018).
6.
can you send Purdt cite
Purdy v. Berryhill, 887 F.3d 7, 14 (1st Cir. 2018).
7.
What if you have a hostile VE who pushes back
and refuses to describe her methodology (Roxane Minkus)?
Your Honor, I request that you direct the witness to answer
the question pursuant to Biestek v. Berryhill, 139 S.Ct. 1140, 1155-56
(2019).
8.
Occu-what?
9.
If the ALJ recognizes the alternative source of
job numbers but states that substantial evidence supports relying on Job
Browser Pro as a reliable source of job numbers because it is recognized by
SSA, does this work?
Then you have to reverse engineer JBP based on NAICS code
double counting, NAICS codes that should not apply, use of equal distribution
at the occupation-industry intersection, and conflict with the SKILLTRAN industry
analyzer. That is the CBP hyperlink
inside JBP screen shot, far right.
10. Do you routinely include all of this in one
ALJ hearing? How often do you have to get this from a supplemental hearing? How
do you cross-examine at a supplemental hearing where the VE is diffierent?
Judges are loathe to call a supplemental hearing. They don’t. That means that the ALJ does not
have a valid evidence-based reason for rejecting the rebuttal evidence.
11. David, I liked your question, would you ask it
again about the federal court assessment where thre was a lack of VE
questioning.
You have to train the people that are doing the
hearings. Tell them to subscribe to JBP
and Occucollect.
12. I find it hard when the ve gives their opinion
at the hearing. is there a strategy to get the information ahead of time or do
post hearing interrogaries.
Open JBP and Occucollect before the hearing starts. While the ALJ is finishing the direct
examination, have the first occupation open.
On Occucollect, you can open extra tabs with right click, open a new tab
on the reports link. That gives you the
ability to have all occupations open. I
designed the everything report to help during cross.
13. I have definitely been able to access more
information with these remote hearings, leading to better cross. Tips on doing
all of this with IN PERSON hearings?
Take a hotspot or use your phone as a hotspot during
hearings.
14. List of cases delineated by Larry: Is it
possible to receive a list of those cases?
Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015)
Allentown Mack Sales & Serv., Inc. v.
NLRB, 522 U.S.
359 (1998)
Anaya v. Berryhill, 2018 U.S. Dist. LEXIS 32838 (C.D.
Cal. Feb. 27, 2018)
Ashley W. v. Kijakazi, 2021 WL 4635799 (D. Or. Oct. 7,
2021)
Barnhart v. Walton, 535 U.S. 212 (2002)
Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005)
Berry v. Astrue, 622 F.3d 1228 (9th Cir. 2010)
Biestek v. Berryhill, 139 S.Ct. 1140 (2019)
Brace v. Saul, 970 F.3d 818 (7th Cir. 2020)..
Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443 (2d Cir. 2012)
Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219 (9th Cir. 2009)
Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018)
Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003)
Dept. of Commerce v. New York, 139 S.Ct. 2551 (2019)
Dept. of Homeland Sec. v. Regents of Univ. of
Cal., 140 S.Ct.
1891 (2020)
Erickson v. Saul, 840 Fed. App’x 167 (9th Cir. Mar.
1, 2021)
Flores v. Shalala, 49 F.3d 562 (9th Cir. 1995)
Ford v. Saul, 950 F.3d 1141 (9th Cir. 2020)
Goode v. Comm’r of Soc. Sec., 966 F.3d 1277 (11th Cir. 2020)
Heckler v. Campbell, 461 U.S. 458 (1983)
Hu v. Holder, 652 F.3d 1011 (9th Cir. 2011)
Massachi v. Astrue, 486 F.3d 1149, 1152–53 (9th Cir.
2007)
Purdy v. Berryhill, 887 F.3d 7 (1st Cir. 2018)
Ruenger v. Kijakazi, 23 F.4th 760 (7th Cir. 2022)
Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2018)
Shaibi v. Saul, 2019 WL 3530388 (E.D. Cal. Aug. 1, 2019)
Shaibi v. Saul, 837 Fed. Appx. 531 (9th Cir. 2021)
Shapiro v. Saul, 833 Fed. App'x. 695 (9th Cir. 2021)
Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999)
Tracey Ann P. v. Kijakazi, 2021 WL 4993021 (S.D. Cal. Oct.
27, 2021)
Tracey Ann P. v. Kijakazi, 2022 WL 17842 (S.D. Cal. Jan. 18,
2022)
Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393 (9th Cir. 1984)
Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015)
15. It works! I submitted a post hearing letter
stating the voc witness testimony was vague about his method. Have a supp
hearing coming up
It does.
16. I find it hard to check VE's statement of
jobs with any software during the time of the hearing as might miss other
information. I can always check after the hearing but that
seems too late except for AC appeal if we lose. So, how do you check jobs
during the hearing without missing other information?
That is the limitation identified in several cases. We are up against a wall in every hearing.
17. Is it possible to ask the ALJ for post-hearing
time to submit a short brief to refute the VE's statement of jobs and
methodology? Ask them to hold the record open for a week?
Another attendee said:
I often do that.
Another attendee said:
DO NOT ASK-JUST SUBMIT THE BRIEF. You have an absolute right to do
that. Don't give the ALJ a chance to say no, because the ALJ might
include some explanation as to why the answer is no.
Another attendee said:
Good tip. Do you not need even to ask to keep the record open?
Another attendee said:
Problem is, I sometime CAN'T get a brief out fast enough and the record
gets closed.
Another attendee said:
That was my concern.
Another attendee said:
I think maybe tell rather than ask? :-)
Another attendee said:
No, you do not have to ask the ALJ to keep the record open to submit a
post-hearing memo. Get your post hearing voc evidence and submit it.
Another attendee said:
I have submitted post-hearing briefs the very next day and still have
them rejected by an ALJ intent on denying the claim. AC's
response in my experience is mixed.
Another attendee said:
^yep
Another attendee said:
A smarter ALJ would accept your brief, and then deny you. I think it
would be a good issue on appeal for the ALJ to close the record for argument at
any time prior to decision. Also, you have the right to submit new
post-hearing medical evidence.
If you do not ask, the answer is “no.” You have to ask. The response to the 5-day rule statement is
that rebuttal evidence is not included per the federal register
explanation.
18. I had a data source named yesterday that was
completely new to me - Economic Research Institute. I am still digging in
trying to learn more about it. Anyone else have this one come up?
19. As a federal court appeals attorney, what do
you look for in a case to decide that you will take it? What do we need
to put in the record for you so that it is a good case for you to take?
I look for DOT errors, obsolete jobs, hypothetical question
problems, rejection of medical evidence, and claimant testimony, in that order.
20. 9th circuit Shabi v Berryhill counsel has a
duty to object to VE testimony at the administrative level, so this can be a
post hearing brief
Correct.
21. Sorry came in late but not understanding how
COUNTY data comes into it.
Tax returns.
22. If Job Browser Pro is full of contradictions,
why do you feel that it is malpractice to not have it? Thank you.
Because vocational witnesses use it. You cannot show it is wrong in this case if
you cannot show why it is wrong in this case.
23. How do you obtain a written transcript of the
trial transcript?
I don’t. I listen to the
recording if necessary.
24. I've used Job Sleuth to also look at
jobs. Does anyone else use this and what do you think of it?
Useful tool. Limited
to apple products.
25. Is there a way to refute VE testimony that
something would not require an employer accommodation (such as elevating lower
extremities)?
The ORS is a report without accommodation. The ONET is a report of employee responses,
mostly.
26. A lot of this stuff is over my head... where
can I go to get the basic, beginner, entry level vocational information? Or at
least a basic overview to understand this stuff?
https://californiasocialsecurityattorney.blogspot.com/
27. Love job sleuth. It doesn’t replace JBP but
it’s great when you need a quick transferable skills analysis in a hearing
Yes. It is a DOT/SCO
reproduction.
28. Do you need to object to the VE's testimony at
the time of the hearing or is the post-hearing brief sufficient?
If you do not raise issues at the time of hearing, the request
for a post-hearing submission should state that you will address VW testimony
in the submission.
29. What is considered a reasonable number of
jobs? Do we need separate VE testimony? How do we use the Occucollect report -
can we just put it in the record - do you highlight parts of it? It still shows
there are some jobs - how do you use the information to make the case something
you would want to take on appeal?
Gutierrez v. Comm’r of
Soc. Sec. Admin., 740 F.3d 519, 529 (9th Cir. 2014) (25,000 jobs in the
nation a “close call.”) I argue that the
percentage classifications apply serially to the aggregate number of jobs in
the SOC group and/or the occupation (SOC) – industry (NAICS) intersection.
30. Since Social Security regulations state that
the ALJ most use reliable government sources is it worth to ask the witness if
the onet is a reliable government source of jobs information
The Department of Labor says it is. https://www.dol.gov/agencies/oalj/topics/libraries/LIBDOT.
31. Mr. Rohlfing also will be at the Michigan SS
Law Section's Summer Seminar at Boyne Highlands in Michigan on June 12-14 this
summer. More information is available if you email me at jrrinck@jrrinck.com.
A shameless plug!
32. So when are we getting to the portion on how
to use vocational evidence in district court?
The ALJ must resolve the conflicts in the evidence. See the supreme court cases cited above.
33. How do you deal with the ALJ resetting the
hearing with a new VE after you submit the Occucollect information?
By starting over.
Agency policy disfavors taking a VW off rotation.
34. On average, how long does your cross of a VE
take?
Anywhere from 15 to 30 minutes.
35. I have had VE's tell me they just need one
good job. Do you have to rule out all of the jobs cited by the VE in order to succeed
at the federal court level?
You have to get the total to less than a significant number
of jobs.
36. You have a right to file a post-hearing brief
that deals, inter, alia, the with VW’s testimony: SSR 96-9P n. 8
provides, “[w]henever a VE is used, the individual has the right to review and
respond to the VE evidence prior to the issuance of a decision.”
Further, under the Administrative Procedure Act “[a] party is entitled to
present his case or defense by oral or documentary evidence, to submit rebuttal
evidence, and to conduct such cross-examination as may be required for a full
and true disclosure of the facts.” 5 U.S.C. § 556(d).
Yes!
37. Columbo is a good analogy. HA! "Just one
more thing..."
Peter Falk was great in the role.
38. Where on County Business Patterns do you go to
verify the testimony?
The three to six digit statement of the number of jobs,
available on www.occucollect.com.
39. I don’t mind spending a day or three but don’t
know where to start.
It is difficult, which is why it is rewarding professionally
and financially.
40. From James Rinck to Everyone 04:08 PM
Come to Michigan for two days and you will.
Mr. Camp and Sarah Bohr will be there as well.
41. What is the blog?
http://californiasocialsecurityattorney.blogspot.com/
42. Read Supreme Court Case Bistek v. Berryhill
Mandatory.
___________________________
Suggested Citation:
Lawrence Rohlfing, Questions and Answers from the NOSSCR Webinar 4/21/22, California Social Security Attorney (April 21, 2022) https://californiasocialsecurityattorney.blogspot.com
