Yesterday, the Ninth Circuit published an opinion in White v. Kijakazi. To understand White, we use our Rocky and Bullwinkle Way Back Machine and examine White v. Saul, the District Court decision. The Way Back Machine is Google Scholar in this instance. Here is what Judge Claire held:
Plaintiff asks the court to make its own assessment of job availability based on her counsel's personal research, when the relevant question is whether the ALJ properly relied on the VE's testimony. The undersigned finds that the ALJ did properly rely on the VE's testimony, and indeed the ALJ made specific findings of reliability. AR 29. Ninth Circuit precedent clearly supports the ALJ's authority to make a credibility finding regarding the VE's testimony, and to rely on that testimony with respect to job availably. Plaintiff has not demonstrated error, and her motion for summary judgment must be denied.
The Judges and Magistrate Judges should stop labelling our client as Plaintiff. This is a defect in decision-writing that has infected most district courts. The Court of Appeals uses the human being's name. If we truly respect people for who they are, then we should use that person's name (first or last) or initials. But I digress.
The District Court focused on the evidence before the ALJ. Was the ALJ reasonable in relying on the Jeanine Metildi's testimony that there were 72,000 “Table worker,” 65,000 “Assembler,” and 32,000 “Film touch up inspector” jobs in the national economy that White could perform. We know that counsel for White submitted the relevant screen shots from Job Browser Pro to the Appeals Council. The question at the ALJ level is whether the ALJ should have relied on Metildi's testimony. The answer is "no."
The Social Security Administration makes available as part of its library to adjudicators the most up-to-date version of Job Browser Pro. From a dead stop, JBP not running, it took me 1:35 to open the program, type in the job name (not number), find the occupation on the list (sort by exertion, these are sedentary), select that occupation, select employment numbers, and click on DOT estimate. That minute and a half is for all three occupations. But the person must care enough about truth to make the minimal effort to look. I know that the ALJ has no sua sponte duty to look, but no one seriously believes that there are 72,000 “Table worker,” 65,000 “Assembler,” and 32,000 “Film touch up inspector” jobs in the national economy. No one, not even Jeanine Metildi.
Table worker functions in the fabrication, nec industry according to the DOT. The crosswalks tell us that table worker is an inspector, tester, sorter, sampler, and weigher occupations (SOC 51-9061). Film touch-up inspector functions in the electronic component industry and is in the same occupational group. There are 782 DOT codes representing circa 558,000 jobs. Someone will have to justify how any rational person could testify that a fifth of the inspector jobs are contained in these two sedentary unskilled occupations. Assembler works in the button and notion industry. The entire miscellaneous manufacturing industry represents 254,659 jobs and a quarter of them are not this sedentary unskilled occupation. No one seriously believes Jeanine Metildi's testimony that has an inkling of familiarity with the labor data and cares about the reliability of a system that adjudicates a lifeline to people that received the promise of help in the event of disability.
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Suggested Citation:
Lawrence Rohlfing, White v. Kijakazi -- We Are Winning the War -- An Illustration, California Social Security Attorney (August 9, 2022) https://californiasocialsecurityattorney.blogspot.com
The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009.
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