White v. Kijakazi, 44 F.4th 828 (2022) - if the claimant submits rebuttal evidence in the form of Job Browser Pro to the Appeals Council, is a remand necessary to allow the ALJ to address the evidence and to resolve the inconsistency? Held, a remand is appropriate to allow the ALJ to resolve the inconsistency between the vocational testimony and the data provided by Job Browser Pro.
A number of district courts had held that the ALJ had no duty to address rebuttal evidence not in the DOT and had held that Appeals Council evidence was too late. See, Ford v. Saul.
In the 16 months since publication, courts have cited White 60 times according to Google Scholar. Those cases cite White for the application of Job Browser Pro 26 times. The Court of Appeals cited White in two unpublished memoranda and in the disastrous decision in Wischmann v. Kijakazi.
On remand, White sought fee relief under the Equal Access to Justice Act. As an aside, everyone should have in their pocket that attorneys do not make money on circuit court appeals. It isn't that we don't get paid, it is that we don't get paid enough, never do. An appeal in any other area of law would generate fees between $60,000 and $100,000. It takes that much effort, skill, and a pinch of luck. The identity of the panel makes a difference, after all we lost in the USDC.
Back to White's application for fees. Magistrate Judge Allison Claire denied the motion. Judge Claire found that the COSS was substantially justified:
Indeed, the undersigned initially ruled in favor of the Commissioner based on the law as it existed and was understood at the time.
Who cares? Three judges on the Ninth Circuit panel reversed because it was legal error to fail to consider and reconcile the Job Browser Pro evidence. Novelty of a legal question is not a basis for finding substantial justification. Judge Claire continued:
Although Buck v. Berryhill had been decided before this case was filed, neither party referenced it in their briefing, presumably because they were either unaware of the case or believed it did not apply to the facts presented in this case.
Attorneys on both sides of the case have an ethical responsibility to cite to the court the controlling authority. For the plaintiff's attorney, a failure might fall below the standard of care. For the government attorney, the agency acted without substantial justification because the conduct violated the duty of candor owed to the court. Judge Claire continued:
Further, the Ninth Circuit acknowledged an extension of Buck to the circumstances of this case, in which plaintiff did not raise the job availability discrepancy to the ALJ, writing "We recognize that the claimant in Buck submitted his estimated job numbers to the ALJ, and that White submitted his estimated job numbers to the Appeals Council. This distinction is not fatal."
The problem for this analysis, even if factually correct, is that it does not matter. Sims v. Apfel erased the AC issue exhaustion because it is an inquisitorial process. Three justices rely on that proposition in the concurrence in Carr v. Saul. The controlling precedent in the Ninth Circuit is "or" in Meanel v. Apfel. Shaibi v. Berryhill states a best practice but permits submitting evidence to the AC.
In response, White raised three defenses to the COSS showing of substantial justification:
(1) the software producing more accurate job numbers was available at the initial ALJ determination level and the Commissioner advanced a false narrative while having ready access to more accurate numbers,That's right. The ALJ corps has Job Browser Pro on their desks. They also have the DOT. But they don't use them, at least not most or even a healthy plurality of ALJs perform the SSR 00-4p check much less check the sources cited. And the Ninth Circuit held that the Job Browser Pro evidence was probative because it contradicted the testimony of the vocational expert witness.
(2) the court of appeals held that the rebuttal evidence presented to the Appeals Counsel was significant, probative, and reasonably likely to change the outcome of the disability determination, yet the Appeals Counsel upheld the ALJ, and
That is the holding of the panel.
(3) the Commissioner's own vocational expert witness made false statements about job availability, and this misconduct cannot be substantially justified.
The agency and the courts continue to embarrass themselves and hold the system to shame for accepting and excusing vocational witness prevarication. Justice Gorsuch wrote in his dissent in Biestek that false testimony cannot be substantial evidence whereas the majority affirmed the nonsensical proposition that nut sorter represented a significant number of jobs. No serious person really believes the nonsense that the witness testified to in Biestek.
The majority in the EAJA appeal rejected the COSS defense and reversed the district court. The agency must clarity and develop the record when there is a vast difference in job numbers. The majority focused on the position of the government as a whole, not isolated aspects. The bottom line advanced by the COSS was that the agency should always be allowed to rely on the vocational witness because they have talismanic insight into the existence, requirements, and numbers of jobs. The majority held that the single sentence in the COSS answering brief that contended that the submission to the AC was reasonable and sufficient to raise a barrier of substantial justification. The majority disagreed. Circuit precedent clearly permits submission of evidence to the AC.
Judge Miller dissented. He would hold that the COSS was reasonable -- substantially justified. What Judge Miller does not address is Brewes. And that it fatal to his dissent.
If I represented the COSS, which I don't, I would have argued Ford v. Saul. There, the Court held that rebuttal vocational evidence was subject to the five-day rule and the untimely request for a subpoena was too little too late. Ford is wrong for several reasons but we can discuss that another day. And I suggested that with my see comment in the year rundown.
Kudos John Metsker on the merits and on the fee appeal. Well done.
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Suggested Citation:
Lawrence Rohlfing, An Update on White v. Kiajakzi -- 2023 EAJA, California Social Security Attorney (December 7, 2023)
https://californiasocialsecurityattorney.blogspot.com
The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.
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