Ma v. Bisigano -- Judge Bade's Dissent Is Wrong

 The Ninth Circuit reversed in Ma v. Bisignano. The two issues presented are:

 1. The residual functional capacity limited Ma to frequent reaching, handling, and fingering but the occupation of silver wrapper requires constant handling and fingering. This is a pre-2025 decision and SSR 00-4p applies.
2. The testimony about the number of jobs had a stated foundation on Job Browser Pro. JBP printouts for 2023 rebut the witness's testimony. 

The majority opinion makes short work of the COSS defense of the ALJ decision. Constant handling and fingering is inconsistent with an RFC for frequent handling and fingering. The majority found that the Job Browser Pro reports for 2023 rendered the vocational testimony insubstantial, applying White v. Kijakazi. 

If the memorandum disposition was a 3-0 reversal, I would not write. But Ma is not a 3-0 decision, Judge Bade wrote in dissent. Judge Bade writes:

As the majority notes, the DOT describes the silver wrapper job as requiring workers to "constantly" engage in handling, fingering, and reaching, but it does not specify whether constant use of both hands is required. See DOT 318.687-018 (silver wrapper). The majority assumes that, despite the DOT's silence on this point, the silver wrapper job requires both hands. But even if we accept the majority's assumption that there is an "obvious or apparent" inconsistency between the DOT's description of the silver wrapper job and the VE's testimony, the ALJ appropriately recognized the potential conflict and resolved it.

Judge Bade summarizes the discourse between the VW and the ALJ, that these jobs could be performed with frequent limitations on the right dominant hand. The ALJ found the testimony consistent with the DOT's (actually the SCO) silence on unilateral or bilateral handling and fingering. 

Let's assume that an occupation requires frequent handling/fingering with one hand and constant handling/fingering with the other hand. Using commonsense understanding, which hand is constant and which hand in frequent as between the dominant and the non-dominant hand? You know the answer and so does Judge Bade. It is the dominant hand. 

The next point is patent. The occupation is silver wrapper. The DOT defines silver wrapper:

Spreads silverware on absorbent cloth to remove moisture. Wraps individual place settings in napkins or inserts them with prescribed accessory condiments in plastic bag and closes bag with electric sealer. Spreads silverware on absorbent cloth to remove moisture. Wraps individual place settings in napkins or inserts them with prescribed accessory condiments in plastic bag and closes bag with electric sealer.

Explain to me, like I am a fifth grader, how these jobs even remotely implicate one-handed work. It is unpersuasive to believe that silver wrapper involves constant manipulation but not with the dominant hand. 

Next issue: the SCO defines handling as involving one or both hands. Fingering is not so defined. The SCO defines handling as with "hand or hands." The SCO defines fingering "with fingers rather than with the whole hand or arm as in handling." Fingering is defined as a bilateral activity. Furthermore, handling necessarily involves the fingers. Again, the SCO defines handling as "fingers are involved only to the extent that they are an extension of the hand." Frequent handling and fingering involves constant use of the fingers for either handling or fingering. 

This directs the analysis to the foundational question -- what is an apparent conflict? SSR 00-4p said (past tense intentional) "Reasonable Explanations for Conflicts (or Apparent Conflicts) in Occupational Information." The parenthetical expression of "or apparent conflicts" is not set out as a definition of "conflicts" but an alternative, an expansion of the term. Gutierrez v. Colvin sets out the distinction as "apparent or obvious."

Most definitions of apparent imply an obvious state. Where the text reads as not redundant, it is error to read the terms as redundant. The basic axiom avoids rendering words as superfluous. Merriam Webster OnLine provides definition 4 using the synonym manifest, 

manifest to the senses or mind as real or true on the basis of evidence that may or may not be factually valid.

Judge Bade presents the evidence, that the VW testified that a silver wrapper could work using the right hand frequently but not occasionally. The VW claimed consistency with the DOT (SCO, the DOT does not address manipulation). Judge Bade characterized the question of bilateral versus unilateral constant handling and fingering as silent. The SCO is not silent. Handling is stated in the alternative, one or both hands. That is not silence but a spoken alternative. Where the SCO says constant handling and fingering, it may or may not be factually valid that the work requires constant use of both hands. It is an apparent conflict. Claiming the lack of conflict is in fact disingenuous. The VW was either wrong or playing a game. You pick. 

Judge Bade reports the record as questioning the "if she could use her right hand 'frequently.'" The definition of handing requires use of the fingers as an extension of the hand. Try handling an object but do not use your fingers. Handle silverware without using your fingers. How finger the silverware without using the palms of the hands -- easy. If a person frequently handles and frequently fingers, that person is in constant use of the fingers. Frequent ranges from 34% to 67%. Frequent is at least 34%. If a person must frequently handle AND frequently finger, then 34% + 34% = 68%. Constant is 68% of the time or more.  A person that frequently handles AND frequently fingers constantly uses the fingers of the impaired hand. 

There is a process to resolving conflict or apparent conflict with the DOT/SCO. 

1.  Admit the presence of a conflict or apparent conflict.
2. State the basis for resolving the conflict. 
3. Articulate why the ALJ selected the DOT/SCO or the VW testimony.

Whether resolving conflict occurs under SSR 00-4p or revealed conflict under SSR 24-3p, 

Neither the DOT nor the VE or VS evidence automatically "trumps" when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information.

Or

Our adjudicators are responsible for evaluating the VS or VE evidence within the context of the overall evidence in the claim. If the VS or VE does not provide the expected information and explanation outlined above, the adjudicator will usually need to develop the record with sufficient evidence to make a supported finding at step four or step five of the sequential evaluation process.

Judge Bade's dissent places her in the position of assuming that the ALJ resolved a conflict. It is not discernible from the Court of Appeals or the District Court decisions that the ALJ was ever aware that silver wrapper required constant handling and constant fingering. Maybe the VW knew, maybe not. It is not the function of the courts to assume recognition and resolution of fact issues by serendipity. 

Under current agency policy, Ma loses because she did not raise the SCO issue to the ALJ or the AC. That means that representative must do a better job of rebutting VW testimony immediately post hearing. 

Back to work. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Ma v. Bisigano -- Judge Bade's Dissent Is Wrong, California Social Security Attorney (November 24, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

Reasonable Explanations for Conflicts (or Apparent Conflicts) in Occupational Information -- Apparent Does Not Mean "Obvious"

What is an "apparent conflict" as described in Social Security Ruling 00-4p? The presence of a conflict or apparent conflict is one of the 10 most common grounds for remanding cases from the federal courts to the Social Security Administration for a new hearing in 2018-2020. Given the unsupported nature of vocational witness testimony, the ranking should be higher.

The ruling uses the expression conflicts and the parenthetical or apparent conflicts. This establishes that apparent conflicts represent a different range of tension between the testimony and the DOT as compared to plain conflict. The question is what does "apparent conflict" mean in this context. The adjective "apparent" is the key. Merriam Webster offers five definitions of "apparent:"

1 : open to view : VISIBLE
    The changes were readily apparent.

2 : clear or manifest to the understanding
    for reasons that are apparent

3 : appearing as actual to the eye or mind
    was in apparent danger

4 : manifest to the senses or mind as real or true on the basis of evidence that may or may not be factually valid 
    died of an apparent heart attack
    The air of spontaneity is perhaps more apparent than real.—J. R. Sutherland

5 law : having an indefeasible right to succeed to a title or estate

The first definition gives the example "readily apparent." Open to view or visible, with the example, implies obviousness. If the instruction is to resolve "conflict (or obvious conflict)" then the parenthetical expression with the disjunctive "or" makes little sense. "Apparent" cannot mean "obvious" in this context because it is either redundant or offers a disjunctive and more restrictive option. 

The same problem applies to the use of clear or manifest. The "or" statement is more restrictive than the original use of unmodified "conflict." The fifth definition does not fit the context presented.

The third and fourth definitions of "apparent" add an alternative. "Appearing as actual to the eye or mind" and "manifest to the senses or mind ... that may or may be factually valid" put in a different concept -- the perceived conflict might be wrong. An apparent danger does not require a true threat to person or property. An apparent conflict does not imply that a myocardial infarct occurred. Those expressions require reasonable perception but not a probability or certainty of that perception. 

The Vocational Expert Handbook (SSA 2023) reinforces the presence of a reasonable perception of conflict as the correct construct of "apparent conflict." The VE Handbook (p. 40, n.50) describes the reasoning level 3 issue:

An occupation with reasoning level 3 requires individuals to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.” It could be argued that occupations requiring reasoning level 3 are too complex for an individual limited to “simple” or “repetitive” tasks. Therefore, an apparent conflict exists.

And there it is. An apparent conflict exists because it could be argued. The proposition that a claimant could reasonably argue a conflict between the DOT and the testimony establishes an apparent conflict. Cases that suggest or hint that an apparent conflict means one that is open, obvious, or so patent that the ALJ could easily discern the presence of a conflict are wrong. Those cases reduce the expression "conflicts (or apparent conflicts)" as redundant or constricted by the disjunctive parenthetical expression. Any reasonable identification of an arguable conflict fits with the plain language of the ruling understood through the lens of dictionary and exemplified by the published VE Handbook places the burden on the ALJ to resolve that conflict sua sponte whether the representative is a potted plant or shouting from the mountain tops. 

Drop the mic. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Reasonable Explanations for Conflicts (or Apparent Conflicts) in Occupational Information -- Apparent Does Not Mean "Obvious", California Social Security Attorney (October 5, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

  

The Court Genuflects to the Regulations -- Kitchen v. Kijakazi

The Ninth Circuit published Kitchen v. Kijakazi on September 14, 2023. The Court disposed of five issues:

    1. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (holding that an ALJ is required to address the Veterans Administration disability rating), is no longer good law.

    2. The ALJ decision complied with the clear and convincing standard for rejecting symptoms and limitation testimony.

    3. The ALJ complied with the articulation burden to reject opinion evidence. 

    4. The ALJ decision adequately addressed the criteria for the mental listings. 

    5. The ALJ did not propound an incomplete hypothetical. 

Kitchen is a veteran injured in the Iraq conflict. The VA awarded Kitchen a 70% rating for PTSD, 10% rating for synovitis, and 10% rating for limited knee motion. The VA does not add ratings together so 70 + 10 + 10 = 80. 

Two doctors examined Kitchen. On orthopedic examination, Kitchen had normal knee motion. On psychological evaluation, Kitchen had either mild or marked limitations in the ability to interact with others. VA doctors described Kitchen as markedly to extremely limited in mental functions. 

Kitchen filed three applications for benefits, all denied. Kitchen filed a fourth application in 2020 claiming disability based on PTSD, depression, anxiety, insomnia, headaches, and residuals of the right knee injury. A medical expert at the administrative hearing identified marked limitations in social function but that the mental residual functional capacity precluded public and close teamwork with other people but that he could tolerate supervision and his other areas of mental function were at or above the normal range.

The ALJ assessed Kitchen as retaining the residual functional capacity to perform light work, simple and routine tasks, no teamwork. The District Court quoted the mental RFC as: 

Regarding interaction with others, the claimant would work best in an environment in proximity to, but not close cooperation (i.e., teamwork), with co-workers and supervisors, and must work away from the public. The claimant does have the ability to interact appropriately with others.

and, 

Regarding the ability to adapt or manage; the claimant would work best in an environment that is routine and predictable, with goals set by others, low stress, not production or quota based. The claimant does have the ability to respond appropriately, distinguish between acceptable and unacceptable work performance; or be aware of normal hazards and take appropriate precautions.

The vocational witness described work for Kitchen's medical-vocational profile as a small product assembler, marker, or electronics worker. 

The Court disposed of the issues in short and predictable order. The Court expressly gave last rites to McCartey based on the 2017 regulatory changes. Woods v. Kijakazi, 32 F.4th 785, 790 (9th Cir. 2022) holds that the law of the circuit no longer controls in light of the change in regulations. Woods cites Lambert v. Saul, 980 F.3d 1266, 1274 (9th Cir. 2020) for that proposition. Kitchen cites the Fourth Circuit decision in Rogers v. Kijakazi, 62 F.4th 872, 879– 80 (4th Cir. 2023). 

Lambert and Rogers have one overriding characteristic in common -- invocation of the deference doctrine in Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs,, 545 U.S. 967 (2005); Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984). Brand X deference allows the agency to overturn settled law of the circuit by reinterpreting the statute. Congress gives the executive branch the power to do so. The grant of authority shields members of Congress from the ire of constituents. The grant of deference removes the power of the courts to say what the law is. Not advocating, just describing.

The remaining issues fall by the wayside having jettisoned McCartey. So let us get to what should have been. The fifth issue is not an issue. The disconnect, if any, between a physician opinion or claimant testimony and the RFC/hypothetical question to the vocational witness is a materiality factor, not a separate issue. The rejection of the opinion or testimony is material because those limitations were not included.

The District Court tells us that the mental RFC contained a production quota limitation in addition to the teamwork limitation. We must examine those issues but that examination is hampered by the lack of a DOT code for any of the three occupations cited. That being the case, I engage in the professional assumption game.

Small products assembler I (DICOT 706.684-022) is a production workers occupation. The essential job function is to work at production pace. The DOT describes the occupation as "Frequently works at bench as member of assembly group assembling one or two specific parts and passing unit to another worker." On both the teamwork and production limitations, this occupation has an apparent conflict with the DOT requiring an explanation pursuant to SSR 0-4p.

Electronics worker (DICOT 726.687-010) is another production worker occupation. The DOT describes the summary function of the occupation as: "Performs any combination of following tasks to clean, trim, or prepare components or parts for assembly by other workers." This occupation requires production rate pace and teamwork and has the same apparent conflict with the DOT analyzed under SSR 00-4p.

Marker (DICOT 209.587-034) is warehouse work, or to use the Department of Labor label, stockers and order fillers. The overwhelming majority of stockers and order fillers have constant contact (face to face, by telephone, or otherwise) with others per the O*NET. Over 90% of stockers and order fillers work with a group or team as important, very important, or extremely important per the O*NET. More importantly, stockers and order fillers engage in medium work per the ORS.

We will lose on the deference doctrine. The odds are stacked against us. But we have other tools on our belts -- to eviscerate the vocational witnesses. They are making it up, it is not even close. For anyone to offer up small products assembler and electronics worker as not engaged in production rate pace and not involved in teamwork screams that the witness cannot be believed.

Convince me otherwise.

___________________________

Suggested Citation:

Lawrence Rohlfing, The Court Genuflects to the Regulations -- Kitchen v. Kijakazi, California Social Security Attorney (September 16, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.