Wildly Implausible Testimony -- Affirmed in Wischmann v. Kijakazi

The Ninth Circuit published the decision in Wischmann v. Kijakazi, ___ F.4th ___, 2023 WL 3488107 (9th Cir. 2023) yesterday. Yet another blow to the integrity of the adjudicative system and the courts. Why? It appears to this outsider looking in that the prints from Job Browser Pro got mangled on the way from the program to the court record. What we can discern is that either the vocational expert does not know how to use Job Browser Pro or used it improperly and on purpose. The data results cited -- simply wrong.

We can use the district court decision to gather the facts missing from the court of appeals decision. James W. v. Comm'r of Soc. Sec., recites that the ALJ found that the claimant had a light residual functional capacity with occasional reaching with the right arm. The vocational expert testified that such a person could work in 59,000 bakery helper jobs; 25,000 counter clerk jobs; and 10,600 agricultural sorter jobs. The district court recited the argument:

Plaintiff contends that the new evidence shows that the VE claimed more jobs in each of the three identified occupations than could exist based on the proffered Job Browser Pro data. Specifically, Plaintiff asserts that the new evidence shows 45 jobs existing for bakery worker, 1,527 jobs existing for counter clerk, and 1,533 positions existing for agricultural sorter, which numbers, Plaintiff argues, are substantially lower than the numbers provided in the VE's hearing testimony and do not qualify as significant in the national economy

The district court went on to reject the argument because the claimant that had applied for SSI (meaning that he met the indigency requirements for a welfare benefit at the time of application) did not hire a vocational expert to read Job Browser Pro and that the ALJ could rely on bile regurgitated by the vocational expert. 

The Ninth Circuit did not focus on the substance of the presentation to the Appeals Council but to formatting. Wischmann describes the formatting of a JBP report and a mangled fourth column with "Selt:gulgy-ed" as the last column. Here is what it should look like:

The formatting for job numbers has spaces where they should not be. Wischmann recites that the JBP report for agricultural produce supporter has an additional error in the labeling of the DOT group column. What is discernible and without a doubt is that the job numbers recited in the three reports covering six pages is that job numbers contradict those of the vocational expert. 

How does the clear formatting from JBP get mangled in the record? The problem is on SSA's end converting PDF documents to TIFF and then back to PDF in the court record. Each data conversion carries distortion and mutation. What Judge Ikuta raises as a problem for Wischmann is properly laid at the feet of the Commissioner.

In the resolution of the legal issues, Wischmann relies on Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193–94 (9th Cir. 2022). There, the attorney submitted a JBP OES report rather than the DOT job number estimate report and engaged in his own analysis using an equal distribution methodology from stale data to derive job numbers. Kilpatrick lacked sufficient foundation. 

Wischmann acknowledges Buck v. Berryhill, 869 F.3d 1040, 1047, 1052 (9th Cir. 2017). Buck found that the COSS could not rely on vocational expert testimony that ostensibly relied on JBP when JBP contradicted the job numbers. Wischmann acknowledges White v. Kijakazi, 44 F.4th 828, 837 (9th Cir. 2022). White found that JBP reports submitted to the Appeals Council deprived the agency decision of substantial evidence for job numbers. 

Wischmann holds that the ALJ (and thus the entire agency) need not accept "uninterpreted raw data." That holding conflicts with the regulations. 20 CFR 404.1566(d), 416.966(d) states without ambiguity that the COSS will take administrative notice of reliable published governmental and private sources about the requirements and numbers of unskilled work in the national economy. Wischmann did exactly what the regulations invited -- requested the agency to take administrative notice of "uninterpreted raw data." 

The presentation of "uninterpreted raw data" is critical to the function of the agency. That type and quality of published data strips the foundation from rudderless vocational testimony. "Uninterpreted raw data" is the subject of administrative notice that the Commissioner invites in her regulations. 20 CFR 404.1566(d), 416.966(d). 

Wischmann stands in conflict with White. The Court should rehear Wischmann en banc to resolve the conflict and to adhere to the regulatory principle of administrative notice. 

Let's assume that Job Browser Pro is a permissible tool for a vocational witness to use. If the witness can base testimony on Job Browser Pro, can a claimant for benefits use Job Browser Pro to show conflict with vocational testimony not based on Job Browser Pro? What is good for the goose is good for the gander. White holds that an unexplained deviation from Job Browser Pro is not substantial evidence. 

What about the unexplained deviation from Job Browser Pro when the vocational witness uses the Occupational Employment Quarterly? The Seventh Circuit is clear that the selection of the OEQ-based testimony over the JBP-based job numbers is not substantial evidence. Chavez v. Berryhill, 895 F.3d 962, 969-70 (7th Cir. 2018). Chavez's refusal to permit reliance on the OEQ in the face of conflict with JBP data is accepted as law of the circuit in Kilpatrick. 

And Job Browser Pro does not produce "raw data." There are two inputs to get to the page where JBP gives national job numbers and only one of them is relevant -- the DOT code or job title. That's it. Users can select the region but that does not change the national job number. 

What users of JBP cannot select, add, delete, or modify are industry codes (NAICS). Prior to version 1.7, JBP uses could and manipulated the program to get different results. Users could stack sectors, subsectors, groups, and industries with common digits to double count NAICS codes. Users could delete other DOT codes from the industry to enhance the number in the target DOT code. That kind of manipulation of the data (cheating the program out of ignorance or malice) ended by version 1.7. 

More importantly, the industry designation(s) are critical to the estimate of job numbers. Counter clerk (photofinishing) does not exist ubiquitously in industries outside of the photofinishing industry. It exists in industries that engage in photofinishing. The 24-hour photobooths are gone. Costco does not have a photo booth anymore. The counter clerk (photofinishing) occupation is rare. To use other industries or claim counter clerks generally is a frank unexplained deviation from the DOT. The ALJ must develop the record for apparent conflict and use of other industries is an apparent conflict once cross-examination pulls back the veil. 

There are two ways to account for industry in the published data. JBP uses the occupation (SOC/OEWS codes) and industry (NAICS codes) published in the OEWS from the Bureau of Labor Statistics. JBP takes those intersections and divides the job numbers by the number of DOT codes that share that intersection. The methodology is replicable; tedious but replicable. Users do have to take JBP's DOT code assignments or explain why the user has changed those DOT code assignments. 

The other data source for occupation-industry intersections comes from BLS in the Employment Projections. The all-industry job numbers are published in the Occupational Outlook Handbook. 20 CFR 404.1566(d)(5), 416.966(d)(5). Using the employment projections to estimate job numbers is equally as valid as using the OEWS data as long as the methodology adheres to the SOC-NAICS intersections. 

This is not a full-throated acceptance of the JBP methodology. I submit that the methodology breaks down after the SOC-NAICS intersections are selected. At that point, the job numbers should be reduced based on skill level, exertional, and non-exertional differences within the SOC group as measured by the O*NET OnLine and the Occupational Requirements Survey. Generating that kind of reliable data for 13,000 DOT codes in 800+ SOC groups await the long overdue OIS. In the meantime, the claimants' bar, the agency, and the courts should stop embarrassing themselves by accepting testimony from witnesses that no serious person believes are even remotely accurate. 

Convince me otherwise. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Wildly Implausible Testimony -- Affirmed in Wischmann v. Kijakazi, California Social Security Attorney (May 21, 2023, updated May 22, 2023) https://californiasocialsecurityattorney.blogspot.com

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