Questions and Answers from the NOSSCR Webinar 4/21/22

 We had a good session for the NOSSCR webinar.  Here is the post-session Q&A:

Q&A:

 

1.    919.663-022 ESCORT-VEHICLE DRIVER (motor trans.) At a hearing held 2 days ago, the  V W testify this job was sedentary. I argued in light of the use of foot pedals this job would be light. V W disagreed.

The DOT does classify ESCORT-VEHICLE DRIVER as sedentary.  The ORS data says that 97% of jobs require medium or heavy exertion.  The remaining 3% are light or sedentary.  JBP estimates 34,000 jobs but over half are self-employed. 

 

2.    I just had a hearing today where the VE testified that she relied on JBP and did not consult any other resources. I objected based upon the reasons you just set forth.

Under Purdy v. Berryhill, 887 F.3d 7, 14 (1st Cir. 2018), that is sufficient.

 

3.    Name of 11th Cir case, too, please?

Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1282 (11th Cir. 2020).

 

4.    I am in the process of submitting a post-hearing memo based upon your BLOG that this job is updated ...Escort-vehicle driver is a light truck driver occupation (SOC 53-3033). Do you have additional evidence I could use?

The DOT does classify ESCORT-VEHICLE DRIVER as sedentary.  The ORS data says that 97% of jobs require medium or heavy exertion.  The remaining 3% are light or sedentary.  JBP estimates 34,000 jobs but over half are self-employed. 

 

5.    what is a well accepted methodology

One that a significant number of vocational witnesses would agree is reliable.  Purdy v. Berryhill, 887 F.3d 7, 14 (1st Cir. 2018). 

 

 

6.    can you send Purdt cite

Purdy v. Berryhill, 887 F.3d 7, 14 (1st Cir. 2018).

 

7.    What if you have a hostile VE who pushes back and refuses to describe her methodology (Roxane Minkus)?

Your Honor, I request that you direct the witness to answer the question pursuant to Biestek v. Berryhill, 139 S.Ct. 1140, 1155-56 (2019).

 

8.    Occu-what?

www.occucollect.com

 

9.    If the ALJ recognizes the alternative source of job numbers but states that substantial evidence supports relying on Job Browser Pro as a reliable source of job numbers because it is recognized by SSA, does this work?

Then you have to reverse engineer JBP based on NAICS code double counting, NAICS codes that should not apply, use of equal distribution at the occupation-industry intersection, and conflict with the SKILLTRAN industry analyzer.  That is the CBP hyperlink inside JBP screen shot, far right. 

 

10.  Do you routinely include all of this in one ALJ hearing? How often do you have to get this from a supplemental hearing? How do you cross-examine at a supplemental hearing where the VE is diffierent?

Judges are loathe to call a supplemental hearing.  They don’t. That means that the ALJ does not have a valid evidence-based reason for rejecting the rebuttal evidence. 

 

11.  David, I liked your question, would you ask it again about the federal court assessment where thre was a lack of VE questioning.

You have to train the people that are doing the hearings.  Tell them to subscribe to JBP and Occucollect. 

 

12.  I find it hard when the ve gives their opinion at the hearing. is there a strategy to get the information ahead of time or do post hearing interrogaries.

Open JBP and Occucollect before the hearing starts.  While the ALJ is finishing the direct examination, have the first occupation open.  On Occucollect, you can open extra tabs with right click, open a new tab on the reports link.  That gives you the ability to have all occupations open.  I designed the everything report to help during cross. 

 

13.  I have definitely been able to access more information with these remote hearings, leading to better cross. Tips on doing all of this with IN PERSON hearings?

Take a hotspot or use your phone as a hotspot during hearings. 

 

14.  List of cases delineated by Larry:  Is it possible to receive a list of those cases?

 

Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015)

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998)

Anaya v. Berryhill, 2018 U.S. Dist. LEXIS 32838 (C.D. Cal. Feb. 27, 2018)

Ashley W. v. Kijakazi, 2021 WL 4635799 (D. Or. Oct. 7, 2021)

Barnhart v. Walton, 535 U.S. 212 (2002)

Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005)

Berry v. Astrue, 622 F.3d 1228 (9th Cir. 2010)

Biestek v. Berryhill, 139 S.Ct. 1140 (2019)

Brace v. Saul, 970 F.3d 818 (7th Cir. 2020)..

Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443 (2d Cir. 2012)

Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219 (9th Cir. 2009)

Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018)

Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003)

Dept. of Commerce v. New York, 139 S.Ct. 2551 (2019)

Dept. of Homeland Sec. v. Regents of Univ. of Cal., 140 S.Ct. 1891 (2020)

Erickson v. Saul, 840 Fed. App’x 167 (9th Cir. Mar. 1, 2021)

Flores v. Shalala, 49 F.3d 562 (9th Cir. 1995)

Ford v. Saul, 950 F.3d 1141 (9th Cir. 2020)

Goode v. Comm’r of Soc. Sec., 966 F.3d 1277 (11th Cir. 2020)

Heckler v. Campbell, 461 U.S. 458 (1983)

Hu v. Holder, 652 F.3d 1011 (9th Cir. 2011)

Massachi v. Astrue, 486 F.3d 1149, 1152–53 (9th Cir. 2007)

Purdy v. Berryhill, 887 F.3d 7 (1st Cir. 2018)

Ruenger v. Kijakazi, 23 F.4th 760 (7th Cir. 2022)

Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2018)

Shaibi v. Saul, 2019 WL 3530388 (E.D. Cal. Aug. 1, 2019)

Shaibi v. Saul, 837 Fed. Appx. 531 (9th Cir. 2021)

Shapiro v. Saul, 833 Fed. App'x. 695 (9th Cir. 2021)

Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999)

Tracey Ann P. v. Kijakazi, 2021 WL 4993021 (S.D. Cal. Oct. 27, 2021)

Tracey Ann P. v. Kijakazi, 2022 WL 17842 (S.D. Cal. Jan. 18, 2022)

Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393 (9th Cir. 1984)

Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015)

 

15.  It works! I submitted a post hearing letter stating the voc witness testimony was vague about his method. Have a supp hearing coming up

It does. 

 

16.  I find it  hard to check VE's statement of  jobs with any software during the time of the hearing as  might miss other information.    I can always check after the hearing but that seems too late except for AC appeal if we lose.  So, how do you check jobs during the hearing without missing other information?

That is the limitation identified in several cases.  We are up against a wall in every hearing. 

 

17.  Is it possible to ask the ALJ for post-hearing time to submit a short brief to refute the VE's statement of jobs and methodology? Ask them to hold the record open for a week?

Another attendee said:  I often do that.

Another attendee said:  DO NOT ASK-JUST SUBMIT THE BRIEF.  You have an absolute right to do that.  Don't give the ALJ a chance to say no, because the ALJ might include some explanation as to why the answer is no.

Another attendee said:  Good tip. Do you not need even to ask to keep the record open?

Another attendee said:  Problem is, I sometime CAN'T get a brief out fast enough and the record gets closed.

Another attendee said:  That was my concern.

Another attendee said:  I think maybe tell rather than ask? :-)

Another attendee said:  No, you do not have to ask the ALJ to keep the record open to submit a post-hearing memo. Get your post hearing voc evidence and submit it.

Another attendee said:  I have submitted post-hearing briefs the very next day and still have them rejected by an ALJ intent on denying the claim.    AC's response in my experience is mixed.

Another attendee said:  ^yep

Another attendee said:  A smarter ALJ would accept your brief, and then deny you. I think it would be a good issue on appeal for the ALJ to close the record for argument at any time prior to decision.  Also, you have the right to submit new post-hearing medical evidence.

If you do not ask, the answer is “no.”  You have to ask.  The response to the 5-day rule statement is that rebuttal evidence is not included per the federal register explanation. 

 

18.  I had a data source named yesterday that was completely new to me - Economic Research Institute. I am still digging in trying to learn more about it. Anyone else have this one come up?

https://www.erieri.com/

 

19.  As a federal court appeals attorney, what do you look for in a case to decide that you will take it?  What do we need to put in the record for you so that it is a good case for you to take?

I look for DOT errors, obsolete jobs, hypothetical question problems, rejection of medical evidence, and claimant testimony, in that order. 

 

20.  9th circuit Shabi v Berryhill counsel has a duty to object to VE testimony at the administrative level, so this can be a post hearing brief

Correct. 

 

21.  Sorry came in late but not understanding how COUNTY data comes into it.

Tax returns. 

 

22.  If Job Browser Pro is full of contradictions, why do you feel that it is malpractice to not have it?  Thank you.

Because vocational witnesses use it.  You cannot show it is wrong in this case if you cannot show why it is wrong in this case. 

 

23.  How do you obtain a written transcript of the trial transcript?

I don’t.  I listen to the recording if necessary. 

 

24.  I've used  Job Sleuth to also look at jobs.  Does anyone else use this and what do you think of it?

Useful tool.  Limited to apple products. 

 

25.  Is there a way to refute VE testimony that something would not require an employer accommodation (such as elevating lower extremities)?

The ORS is a report without accommodation.  The ONET is a report of employee responses, mostly. 

 

26.  A lot of this stuff is over my head... where can I go to get the basic, beginner, entry level vocational information? Or at least a basic overview to understand this stuff?

https://californiasocialsecurityattorney.blogspot.com/

 

27.  Love job sleuth. It doesn’t replace JBP but it’s great when you need a quick transferable skills analysis in a hearing

Yes.  It is a DOT/SCO reproduction. 

 

28.  Do you need to object to the VE's testimony at the time of the hearing or is the post-hearing brief sufficient?

If you do not raise issues at the time of hearing, the request for a post-hearing submission should state that you will address VW testimony in the submission. 

 

29.  What is considered a reasonable number of jobs? Do we need separate VE testimony? How do we use the Occucollect report - can we just put it in the record - do you highlight parts of it? It still shows there are some jobs - how do you use the information to make the case something you would want to take on appeal?

Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 519, 529 (9th Cir. 2014) (25,000 jobs in the nation a “close call.”)   I argue that the percentage classifications apply serially to the aggregate number of jobs in the SOC group and/or the occupation (SOC) – industry (NAICS) intersection. 

 

30.  Since Social Security regulations state that the ALJ most use reliable government sources is it worth to ask the witness if the onet is a reliable government source of jobs information

The Department of Labor says it is.  https://www.dol.gov/agencies/oalj/topics/libraries/LIBDOT. 

 

31.  Mr. Rohlfing also will be at the Michigan SS Law Section's Summer Seminar at Boyne Highlands in Michigan on June 12-14 this summer.  More information is available if you email me at jrrinck@jrrinck.com.

A shameless plug!

 

32.  So when are we getting to the portion on how to use vocational evidence in district court?

The ALJ must resolve the conflicts in the evidence.  See the supreme court cases cited above. 

33.  How do you deal with the ALJ resetting the hearing with a new VE after you submit the Occucollect information?

By starting over.  Agency policy disfavors taking a VW off rotation. 

 

34.  On average, how long does your cross of a VE take?

Anywhere from 15 to 30 minutes. 

 

35.  I have had VE's tell me they just need one good job. Do you have to rule out all of the jobs cited by the VE in order to succeed at the federal court level?

You have to get the total to less than a significant number of jobs. 

 

36.  You have a right to file a post-hearing brief that deals, inter, alia, the with VW’s testimony:  SSR 96-9P n. 8 provides, “[w]henever a VE is used, the individual has the right to review and respond to the VE evidence prior to the issuance of a decision.”   Further, under the Administrative Procedure Act “[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.” 5 U.S.C. § 556(d).

Yes! 

 

37.  Columbo is a good analogy. HA! "Just one more thing..."

Peter Falk was great in the role. 

 

38.  Where on County Business Patterns do you go to verify the testimony?

The three to six digit statement of the number of jobs, available on www.occucollect.com. 

 

39.  I don’t mind spending a day or three but don’t know where to start.

It is difficult, which is why it is rewarding professionally and financially. 

 

40.  From James Rinck to Everyone 04:08 PM

Come to Michigan for two days and you will.

Mr. Camp and Sarah Bohr will be there as well.

 

41.  What is the blog?

http://californiasocialsecurityattorney.blogspot.com/

 

42.  Read Supreme Court Case Bistek v. Berryhill

Mandatory. 

 

___________________________

Suggested Citation:

Lawrence Rohlfing, Questions and Answers from the NOSSCR Webinar 4/21/22, California Social Security Attorney (April 21, 2022)  https://californiasocialsecurityattorney.blogspot.com