An Unpublished, Non-Precedential Memorandum Modified -- Lanham v. Kijakazi

We discussed Lanham v. Kijakazi in May in Lanham v. Kijakazi -- OMG. The panel amended the memorandum disposition to delete the last two sentences. Why?

Memorandum dispositions are not precedential and bind no one except the parties to the litigation in the context of that litigation. Garcia v. Commissioner. Assuming a mem dis is not precedential, why bother? The district courts love to cite the skeletons of a mem dis with the fervor that they are precedential. The Court should also omit statements of law that are just wrong. With that foundation, we examine the change. The panel decision in May ended with: 

In addition, Lanham did not cross-examine the VE regarding the job-numbers estimates. See Shaibi v. Berryhill, 883 F.3d 1102, 1110 (9th Cir. 2017), as amended. "We recognize that a claimant will rarely, if ever, be in a position to anticipate the particular occupations a VE might list[,]" but a claimant may "inquir[e] as to the evidentiary basis for a VE's estimated job numbers, or inquir[e] as to" the consistency of the numbers. Id.

The August order deletes the last two sentences. Is the failure to cross-examine the vocational witness (VW) fatal to the challenge of the job numbers later? It should not be. The record is open for post-hearing submissions and Appeals Council submissions of rebuttal evidence, evidence attacking foundation, and evidence attacking methodology. Lanham infers that the "may inquire" language from Shaibi imposes a duty to seek out the evidentiary basis for the job numbers estimate or the consistency of the job numbers estimate. Step 5 is the COSS burden of proof.

Should the representative inquire? Yes. The representative should inquire as to the definitions of terms and phrases contained in the hypothetical questions, the methodology used to estimate job numbers, and the data sources for estimating job numbers. 

There is a set of methodologies that are faithful to the DOT. That methodology starts with the DOT code and the industries cited in parentheses or teased out of the narrative. A methodology that does not consider is inconsistent with the DOT. Start there. 

Follow me into the abyss.

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Suggested Citation:

Lawrence Rohlfing, An Unpublished, Non-Precedential Memorandum Modified -- Lanham v. Kijakazi, California Social Security Attorney (August 7, 2023) https://californiasocialsecurityattorney.blogspot.com

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