Thursday, January 28, 2021

What Happens When the Representative Submits Evidence During and Post Hearing to the ALJ?

 I continue to encourage the submission of rebuttal evidence to the ALJ.  That is best practice.  Here is what the Appeals Council said about the submission of post hearing evidence to the ALJ:

The claimant's representative submitted a brief with additional vocational evidence attached (Exhibits 27E, 28E). Although the brief and vocational evidence were exhibited in the electronic record, they were not discussed in the decision or incorporated in the exhibit list attached to the decision. The Administrative Law Judge is not required to discuss every document in the record, however, material evidence should be exhibited with the decision and the arguments raised by the representative should be considered.

AC Order remanding case to ALJ.  

Here is what a court said in a truly unpublished opinion about vigorous cross-examination of a vocational expert at the hearing:

But “[b]ecause the DOT provides only job descriptions and specifications, and not the actual hard numbers regarding the national and regional availability of the same,” VEs must —as the one here did—“utilize additional secondary sources to ascertain the numbers of positions that exist for each of the DOT codes.” Kennedy v. Colvin, 2014 WL 3695466, at *20 (S.D. Cal. July 22, 2014). Here, the VE relied on a combination of the U.S. Publishing figures—which uses numbers from the Department of Labor’s Bureau of Labor Statistics (“BLS”) and the U.S. Census—and the software program Job Browser Pro. (AR 1956, 1986). Based on those secondary sources, she explained that 50,000 toy assembler, 25,000 assembler of plastic hospital products, and 18,000 inspector/hand packager jobs existed in the national economy. (AR 1949-50).

If the facts just described were the complete state of the record, the ALJ’s reliance on the VE’s testimony to find that Mr. Buchanan was not disabled at step five (AR 44-47) would have been supported by substantial evidence. That is because “in the absence of any contrary evidence, a [VE’s] testimony is one type of job information that is regarded as inherently reliable.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). But if, on the other hand, the VE’s testimony is challenged by contrary evidence—as it was here—the conflict can sometimes trigger the ALJ’s legal duty to further develop the record. See id. at 1047, 1052. In this case, the VE testified that she obtained her numbers from two different resources, U.S. Publishing magazine and the Job Browser Pro software program. Yet when the ALJ asked her to pull up toy assembler on Job Browser Pro to confirm her numbers for that job, the VE was unable to find any job numbers for that occupation on the site. The ALJ responded that “this begs the question” where the VE obtained her numbers from. The VE replied that she “didn’t bring [her] stack of U.S. Publishing” with her. (AR 1972). But Plaintiff’s evidence presented at the hearing indicated that U.S. Publishing would not support the VE’s numbers either. Plaintiff provided conflicting job numbers from the BLS on which U.S. Publishing relies in part for its published figures. (AR 1969, 1986). Under these specific circumstances, the ALJ had a duty to develop the record further.

Contrary to Defendant’s view that the ALJ gave detailed reasons to accept the VE’s testimony, none of those reasons addressed or reconciled the core conflict between the claimant’s job numbers and the VE’s. In fact, the ALJ even incorrectly observed that the VE and claimant were relying on different sources. To the contrary, as noted above, Plaintiff’s numbers came from the BLS, and the VE’s sources—U.S. Publishing and Job Browser Pro—rely in part on the BLS. (AR 1956, 1986-87). And while a VE is generally entitled to rely on her professional judgment, nothing in the record shows that the VE did that here. The VE testified only as to two sources for her numbers, but when faced with conflicting evidence, she said nothing to reconcile the discrepancy between her numbers and claimant’s proffered numbers—whether in her professional judgment or otherwise. Thus, as a result of the unexplained and unreconciled variances in the VE’s testimony in the face of conflicting evidence and the lack of a cogent explanation from the VE on how she arrived at her numbers, the ALJ’s finding that Mr. Buchanan could perform other work available nationally in sufficient numbers was unsupported by substantial evidence. See, e.g., Buck, 869 F.3d at 1052 (reversing and remanded where “the vast discrepancy between the VE’s job numbers and those tendered by [the claimant], presumably from the same source, [was] simply too striking to be ignored”); Daniels v. Colvin, 2014 WL 794498, at *5 (C.D. Cal. Feb. 26, 2014) (remand required where VE conducted “insufficient” analysis of number of jobs allocating job numbers from broad Standard Occupational Classification category to narrowed DOT category without further explanation).
Brown v. Saul, 5:06-cv-00367-SK (C.D. Cal. Jan. 14, 2021).  


Suggested Citation:

Lawrence Rohlfing, What Happens When the Representative Submits Evidence During and Post Hearing to the ALJ?, California Social Security Attorney (January 28, 2021)

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