Wednesday, December 28, 2022

Orozco v. Kijakazi -- the List for Conflict Expands

The District Court issued a decision in Jesus V.O. v. Kijakazi2021 WL 5500528 (C.D. Cal. Oct. 18, 2021) vacated and remanded Orozco v. Kijakazi, 2022 WL 17844618 (9th Cir. Dec. 22, 2022). V.O. declared that conflict between the vocational witness and sources other than the DOT did not impose a duty of reasonable explanation on the ALJ. Orozco clarifies the point -- the ALJ must state reasons for rejecting the evidence in conflict.

Orozco holds that when the VW admits that her source for job numbers (here, Job Browser Pro) conflicts with the testimony, the ALJ must reconcile the conflict. The VW testified that production assembler (actually solderer) represented 71,000 jobs but JBP described less than 6,000 jobs. To allow the VW to inflate the number of jobs would permit the witness to pull the number out of a hat.

The VW testified that Orozco could perform work as an electrical assembler and wafer line worker. The Occupational Requirements Survey described 26.7% of jobs in the category that includes both unskilled jobs as not having an educational requirement but all 26.7% of jobs required literacy. The balance of jobs required a high school equivalency or more education, 73.3% of the jobs in the category.

The Ninth Circuit elevated Job Browser Pro to a source that requires conflict resolution in White and in the unpublished opinion in Perkins. The Ninth Circuit relied to County Business Patterns and/or the Occupational Employment Statistics by reference in Erickson. The Ninth Circuit relied on the O*NET as a basis for finding that work was not full-time in Jaquez. Orozco adds to the list -- the ORS.

In Jaquez and Orozco, the O*NET and ORS data presented consisted of printouts from The Commissioner will likely complain bitterly in the future that this author has an interest in OccuCollect. That is true and irrelevant. The COSS has never come forward with even a scintilla of evidence that the data presented in OccuCollect is anything other than up-to-date and accurate reflections of the DOT, SCO, O*NET, OEWS, CBP, and ORS.

Drop the mic. 


Suggested Citation:

Lawrence Rohlfing, Orozco v. Kijakazi -- the List for Conflict Expands, California Social Security Attorney (December 28, 2022)

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


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