Wednesday, December 4, 2019

Oral Argument in Keifer v. Saul -- Extension of Full Waiver Rules to Non-Attorney Representatives

I argued Keifer v. Saul to the Ninth Circuit on December 2, 2019.  The issue is simple, the vocational expert identified the number of production jobs, twice, and claimed that the entire OES group applied, twice, to both sedentary 1-2 step occupations.  The VE did the same with a filling machine operator occupation and an inspector occupation.  The non-attorney representative did not present the conflict to the ALJ.  The case was a prior remand from the District Court.  The case bypassed the Appeals Council.

Keifer asked the USDC to take notice of the Occupational Employment Statistics showing the exact number of jobs identified by the VE in all four occupations and the Occupational Outlook Handbook to show that the occupations required moderate-term on-the-job training -- semi-skilled or skilled as typically performed.  The USDC found waiver applied to the non-attorney representative, extending Meanel v. Apfel and Shaibi v. Berryhill.

Judge Callahan suggested that the court treat pro pers from administrative proceedings in the same way that they do in federal court proceedings -- no slack.  Judge Bade wondered how the differential treatment crept into the law.  Visiting Judge Lucero did not appear too concerned about the origin of the concept.

My prediction is simple.  The court will extend issue waiver before the ALJ to non-attorney representatives.  The duty to present evidence to the ALJ will extend from "at least where represented by counsel" to "where represented by any professional representatives."  The issue of pro per claimants is is not before the court.

Te court will drive the fulcrum between McLeod v. Astrue, permitting the claimant to submit VA evidence to the court, and Chaudhry v. Astrue, because here we have a representative that is registered and qualified for direct payment -- a professional representative.

There is a discussion about the ramifications of waiver -- legal or professional malpractice.  Where the case is clearly on the cusp, failure to develop the conflicting evidence will likely fall below the standard of reasonable care.  Sedentary 1-2 step work does not exist, at least not  in significant numbers based on a reliable method for extrapolating local experience to the national economy.  Ask the vocational expert:

1. What is your source
2. What is your methodology
3. Replicate the source and methodology
4. Submit that evidence to the ALJ
5. Force the ALJ to resolve the conflict in the evidence
6. Seek review by the Appeals Council
7. Seek review by the District Court

Expect a decision early next year in Keifer.  This is another step where the courts demand that if we believe the VE testimony is insubstantial, we must prove it ... to the ALJ.


Lawrence Rohlfing, Oral Argument in Keifer v. Saul -- Extension of Full Waiver Rules to Non-Attorney Representatives, California Social Security Attorney (December 4, 2019),

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