Ma v. Bisigano -- Judge Bade's Dissent Is Wrong

 The Ninth Circuit reversed in Ma v. Bisignano. The two issues presented are:

 1. The residual functional capacity limited Ma to frequent reaching, handling, and fingering but the occupation of silver wrapper requires constant handling and fingering. This is a pre-2025 decision and SSR 00-4p applies.
2. The testimony about the number of jobs had a stated foundation on Job Browser Pro. JBP printouts for 2023 rebut the witness's testimony. 

The majority opinion makes short work of the COSS defense of the ALJ decision. Constant handling and fingering is inconsistent with an RFC for frequent handling and fingering. The majority found that the Job Browser Pro reports for 2023 rendered the vocational testimony insubstantial, applying White v. Kijakazi. 

If the memorandum disposition was a 3-0 reversal, I would not write. But Ma is not a 3-0 decision, Judge Bade wrote in dissent. Judge Bade writes:

As the majority notes, the DOT describes the silver wrapper job as requiring workers to "constantly" engage in handling, fingering, and reaching, but it does not specify whether constant use of both hands is required. See DOT 318.687-018 (silver wrapper). The majority assumes that, despite the DOT's silence on this point, the silver wrapper job requires both hands. But even if we accept the majority's assumption that there is an "obvious or apparent" inconsistency between the DOT's description of the silver wrapper job and the VE's testimony, the ALJ appropriately recognized the potential conflict and resolved it.

Judge Bade summarizes the discourse between the VW and the ALJ, that these jobs could be performed with frequent limitations on the right dominant hand. The ALJ found the testimony consistent with the DOT's (actually the SCO) silence on unilateral or bilateral handling and fingering. 

Let's assume that an occupation requires frequent handling/fingering with one hand and constant handling/fingering with the other hand. Using commonsense understanding, which hand is constant and which hand in frequent as between the dominant and the non-dominant hand? You know the answer and so does Judge Bade. It is the dominant hand. 

The next point is patent. The occupation is silver wrapper. The DOT defines silver wrapper:

Spreads silverware on absorbent cloth to remove moisture. Wraps individual place settings in napkins or inserts them with prescribed accessory condiments in plastic bag and closes bag with electric sealer. Spreads silverware on absorbent cloth to remove moisture. Wraps individual place settings in napkins or inserts them with prescribed accessory condiments in plastic bag and closes bag with electric sealer.

Explain to me, like I am a fifth grader, how these jobs even remotely implicate one-handed work. It is unpersuasive to believe that silver wrapper involves constant manipulation but not with the dominant hand. 

Next issue: the SCO defines handling as involving one or both hands. Fingering is not so defined. The SCO defines handling as with "hand or hands." The SCO defines fingering "with fingers rather than with the whole hand or arm as in handling." Fingering is defined as a bilateral activity. Furthermore, handling necessarily involves the fingers. Again, the SCO defines handling as "fingers are involved only to the extent that they are an extension of the hand." Frequent handling and fingering involves constant use of the fingers for either handling or fingering. 

This directs the analysis to the foundational question -- what is an apparent conflict? SSR 00-4p said (past tense intentional) "Reasonable Explanations for Conflicts (or Apparent Conflicts) in Occupational Information." The parenthetical expression of "or apparent conflicts" is not set out as a definition of "conflicts" but an alternative, an expansion of the term. Gutierrez v. Colvin sets out the distinction as "apparent or obvious."

Most definitions of apparent imply an obvious state. Where the text reads as not redundant, it is error to read the terms as redundant. The basic axiom avoids rendering words as superfluous. Merriam Webster OnLine provides definition 4 using the synonym manifest, 

manifest to the senses or mind as real or true on the basis of evidence that may or may not be factually valid.

Judge Bade presents the evidence, that the VW testified that a silver wrapper could work using the right hand frequently but not occasionally. The VW claimed consistency with the DOT (SCO, the DOT does not address manipulation). Judge Bade characterized the question of bilateral versus unilateral constant handling and fingering as silent. The SCO is not silent. Handling is stated in the alternative, one or both hands. That is not silence but a spoken alternative. Where the SCO says constant handling and fingering, it may or may not be factually valid that the work requires constant use of both hands. It is an apparent conflict. Claiming the lack of conflict is in fact disingenuous. The VW was either wrong or playing a game. You pick. 

Judge Bade reports the record as questioning the "if she could use her right hand 'frequently.'" The definition of handing requires use of the fingers as an extension of the hand. Try handling an object but do not use your fingers. Handle silverware without using your fingers. How finger the silverware without using the palms of the hands -- easy. If a person frequently handles and frequently fingers, that person is in constant use of the fingers. Frequent ranges from 34% to 67%. Frequent is at least 34%. If a person must frequently handle AND frequently finger, then 34% + 34% = 68%. Constant is 68% of the time or more.  A person that frequently handles AND frequently fingers constantly uses the fingers of the impaired hand. 

There is a process to resolving conflict or apparent conflict with the DOT/SCO. 

1.  Admit the presence of a conflict or apparent conflict.
2. State the basis for resolving the conflict. 
3. Articulate why the ALJ selected the DOT/SCO or the VW testimony.

Whether resolving conflict occurs under SSR 00-4p or revealed conflict under SSR 24-3p, 

Neither the DOT nor the VE or VS evidence automatically "trumps" when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information.

Or

Our adjudicators are responsible for evaluating the VS or VE evidence within the context of the overall evidence in the claim. If the VS or VE does not provide the expected information and explanation outlined above, the adjudicator will usually need to develop the record with sufficient evidence to make a supported finding at step four or step five of the sequential evaluation process.

Judge Bade's dissent places her in the position of assuming that the ALJ resolved a conflict. It is not discernible from the Court of Appeals or the District Court decisions that the ALJ was ever aware that silver wrapper required constant handling and constant fingering. Maybe the VW knew, maybe not. It is not the function of the courts to assume recognition and resolution of fact issues by serendipity. 

Under current agency policy, Ma loses because she did not raise the SCO issue to the ALJ or the AC. That means that representative must do a better job of rebutting VW testimony immediately post hearing. 

Back to work. 

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Suggested Citation:

Lawrence Rohlfing, Ma v. Bisigano -- Judge Bade's Dissent Is Wrong, California Social Security Attorney (November 24, 2025)  https://californiasocialsecurityattorney.blogspot.com

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