Presenting Evidence of Job Numbers and Waiver

On May 18, 2017, I argued Shaibi v. Berryhill to a panel of the Ninth Circuit.  That led to the panel decision.  The court found that:

We now hold that when a claimant fails entirely to challenge a vocational expert's job numbers during administrative proceedings before the agency, the claimant waives such a challenge on appeal, at least when that claimant is represented by counsel.

Shaibi isn't final.  Despite being issued on August 22, 2017, the mandate has not issued.  Shaibi filed a petition for rehearing and rehearing en banc that remains pending with the court.  The question is whether the Occupational Outlook Handbook and County Business Patterns have the same status as the Dictionary of Occupational Titles -- the claimant can bring that evidence in at the judicial review level for the first time.  While I think the answer is yes, I am not optimistic.

On November 14, 2017, I argued Holden v. Berryhill to a panel of the Ninth Circuit that included Judge Murguia, a member of the Shaibi panel.  Holden did not have an attorney representative at the hearing -- he had a non-attorney representative at the hearing.  The Commissioner argues that a non-attorney qualified for direct payment of fees passes a test, maintains insurance, and qualifies as counsel under the Shaibi and Meanel test.  The panel did not press OGC on that concept that "counsel" includes non-attorneys. 

This is your pre-decision warning and notice.  Shaibi will likely survive and Holden will likely expand the waiver doctrine to include non-attorneys that are eligible for direct payment.  Whenever the vocational expert gives job numbers and the representative thinks that there is a real possibility that the ALJ will accept the vocational expert testimony to deny the case, the representative must break out the books, fire up the computer, print the pages, and present the contrary data to the ALJ and to the Appeals Council. 

I am not addressing the clear loser case.  A younger individual capable of a limited range of light work but still capable of the full range of sedentary work -- the claimant loses on the sedentary grid table.  Likewise, a person closely approaching advanced age capable of a narrow range of medium work but still capable of a wide range of light and sedentary work -- the claimant loses.  We are concerned about those cases where if the claimant cannot perform the identified work, and work of the same ilk, that the claimant wins.  A limited range of sedentary work at all ages; a limited range of light work for a person 50-54; a person over 55 with a limited range of medium work -- those cases require the full-court press. 

I said this at NOSSCR in September -- if you don't want to press the job numbers on the cusp cases, don't take the cusp cases.  If you take the case and don't present evidence of VE fraud (yes, I used that word), then don't be surprised if the claimant gets his/her benefits through a civil action for malpractice.  We need to start taking the cusp cases seriously and not depend on the lottery that this claimant will get one of those ALJ's that understands the mendacity of the vocational experts or that the disability bar is not supposed to be a hike up Mount Everest.  Those judges are not in the majority -- they are in the increasingly small minority.