Where should the intrepid representative submit evidence -- to the ALJ at or after the hearing or to the Appeals Council? The ALJ asks three questions at the hearing:
- The medical-vocational profile that the ALJ intends to find.
- A medical-vocational profile that the ALJ might find if it results in jobs.
- A medical-vocational profile that the ALJ will not find -- 20% off-task, three absences per month, not full-time work.
Question #3 is a placebo, a deep fake to the claimant that he/she has been heard and understood. "The jobs person agreed that I could not work." How often does the ALJ rely on question #3? Not very often at all. Anecdotally, representatives tell me that ALJ X adopted question #3 in the residual functional capacity assessment and found the person disabled. Most ALJs ask the profile that will be adopted in the first question.
What do we do in that circumstance? Go after the vocational witness with hammer and tongs. Get a clear indication of methodology and destroy the credibility of the witness. If a representative really does not want to upset the ALJ because there are three more cases today or this week, get out of the business. Every claimant deserves full effort at the hearing.
Boonthong v. Bisignano is a failure to cross. The ALJ assessed the profile and the witness identified jobs. "The evidence submitted to the Appeals Council is not sufficiently probative to warrant remand." (Emphasis added, cleaned up). Boonthong relied on White v. Kijakazi. In White, the witness stated that the job numbers came from Job Browser Pro. The Court did not find JBP inherently reliable or always sufficient to contradict the testimony as a matter of law. White relied on Buck v. Berryhill (evidence "presumably from the same source, is simply too striking to be ignored"). A claimant has the right to submit rebuttal evidence to the ALJ. Heckler v. Cambell. Rebuttal evidence does not have to come from the same source or same methodology. It is rebuttal evidence.
Why doesn't that work at the Appeals Council review? Glad you asked. The Appeals Council does not review the ALJ decision de novo. The Appeals Council reviews for:
- Abuse of discretion.
- Error of law.
- Substantial evidence.
- Broad policy concerns.
- New evidence for which good cause exists for not submitting it to the ALJ.
20 CFR 404.970. "I should have submitted this post hearing to the ALJ but I was really counting on hypothetical #3" is not good cause.
The question with rebuttal evidence is substantial evidence. Could a reasonable person find that the vocational witness was right? On a record without conflict, the answer is "yes." If the representative does not leave the witness frothing at the mouth because the nonsense has suffered exposure or the witness does not engage in frank capitulation, the representative has failed in the duty to vigorously represent the claimant.
The Court went on to apply Wischmann v. Kijakazi. Wischmann is a bad OCR where the PDF program thrashed the document. Judge Ikuta is clear in the decision that no one could be confident what was and was not butchered in the record. If an attorney on appeal does not address the underlying problem with Wischmann, that attorney has not thoroughly digested the decision.
One comment is in order for the unpublished memorandum in Boonthong. The variable that a person can use in Job Browser Pro 1.7.x are:
- The DOT code.
- The local region.
- Full-time and/or part-time.
In older versions, users could add or subtract industries and change the outcome. That has not been true for at least eight years.
For the variables that a user can select, the DOT code is obvious; the local region is irrelevant (we are looking at national jobs); and full-time vs. part-time is obvious on the face of the screen shot or the printed report. One more sidebar -- the part-time designation by JBP is not policy compliant. SSA defines full-time as 40 hours, not 35 hours used by SkillTRAN.
Hammer and tongs means "with great force, vigor, or violence." I would add one more emotive component, enjoyed defense of my client.
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Suggested Citation:
Lawrence Rohlfing, Boonthong -- Replicating Vocational Witness Methodology at the Appeals Council, California Social Security Attorney (September 1, 2025) https://californiasocialsecurityattorney.blogspot.com
The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.
