Don't Call Saul -- Ford v. Saul

“On June 17, 2019, Saul was officially sworn in as the Commissioner of Social Security at the agency's offices in Washington, D.C. […] On July 9, 2021, Saul was removed from his position as commissioner by President Joe Biden, after he refused a request to resign.” Wikipedia. During that period, the Ninth Circuit decided eight cases resulting in published and precedential decisions. We start with Ford v. Saul.

Ford v. Saul – The vocational expert testified to 130,000 addresser and 9,800 ink-printing jobs in the national economy. The vocational expert testified that she averaged the number of jobs reported by the Department of Labor, the Chamber of Commerce, Social Security, the Census Bureau, the International Trade Association, and adding that Alaska had good national number job numbers. The vocational expert did not have his notes to explain the averaging.

Held, the ALJ had adequate reasons for rejecting the opinions of treating physicians that Ford could work (and did work) part-time. The opinions were inconsistent with objective findings and Ford’s activities including working part-time six to eight hours per day. Finally, the opinions were not explained.

Ford requested a subpoena post-hearing to further address the vocational evidence. The ALJ denied that request. The Court—incorrectly—applied the five-day evidence rule, that Ford should have anticipated the vocational testimony and asked for the subpoena before ever hearing the testimony. The agency need not require that a vocational expert “always” produce the underlying data upon request. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). The Court found no evidence of a lack of qualifications, untrustworthiness, or contradiction. “There is no need for an ALJ to assess [vocational testimony] reliability.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). 

Biestek lays out the foundation issue with the conjunctive tail: “extrapolating those findings to the national economy by means of a well-accepted methodology.” Biestek, 139 S. Ct. at 1155. According to the decision in Ford, the vocational testimony did not cite to a single source—not one, not any. The testimony cited to agencies but not a source of data within that agency. Let’s take a look at them:

Department of Labor – the DOL publishes the Employment Projections that form the basis of the Occupational Outlook Handbook and O*NET, and the Occupational Employment Statistics (now the Occupational Employment and Wage Statistics). The EP and OOH update every two years, more or less. The OEWS updates every May. Which one is the witness using? We have no idea.

          The OES described word processors and typists (the occupational group for addresser) as representing 47,460 jobs in 2019 and 41,930 in 2021.

          The EP described word processors and typists (the occupational group for addresser) as representing 46,100 in 2021.

Chamber of Commerce – the Chamber of Commerce does not provide easily accessible job numbers data sorted by Standard Occupational Classification codes that would point to addresser jobs in the nation.

Social Security – does not publish job numbers.

Census Bureau – the Census Bureau publishes the Current Population Survey and County Business Patterns. The CPS counts jobs by SOC (occupational) code. The CBP counts jobs by industry (NAICS) code.

          The Census Bureau does not make Table A26 readily available to the public.

          CBP does not provide occupation specific job numbers.

International Trade Administration – is a government resource for competing in the global marketplace. 

The question that Biestek poses and Ford answers in the negative, does the witness have to provide a “well-accepted methodology” when asked on cross-examination even in the complete absence of any obligation to disgorge the actual documents relied upon?

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Suggested Citation:

Lawrence Rohlfing, 2021 Unpublished Memorada Dispositions of the Ninth Circuit, California Social Security Attorney (March 28, 2023) https://californiasocialsecurityattorney.blogspot.com

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