Past Relevant Work -- Obrien v. Bisignano

 The Ninth Circuit published its opinion in Obrien v. Bisignano on July 1, 2025. This is a step four past relevant work claim. Obrien arose under the 15-year paradigm. Obrien has continued relevance under the 5-year rules for what is and is not relevant in comparing residual functional capacity (RFC) to past work. 20 CFR 404.1560, 404.1565 (2024). 

Obrien filed a claim for benefits and wound his way through the administrative process. Obrien's representative at the hearing and before the Appeals Council did not much. The court decision does not suggest the presence of a pre-hearing brief of a merits brief to the Appeals Council. The Commissioner smells blood and cries forfeiture on the question whether past work was relevant. 

The Commissioner did capitulate to error in finding sales representative outside of the RFC assessed. As to Obrien's past work as a telemarketer, the Commissioner argued that whether the work was performed within 15 years of the relevant date (date of decision for SSI or date last insured for DIB) or whether the earnings exceeded the threshold amount for substantial gainful activity was forfeited. 

The Commissioner raised the issue in the opposition portion of the joint submission to the district court. Obrien's attorney responded on the merits but not directly to the forfeiture argument. On appeal, the Commissioner argued that Obrien forfeited the forfeiture issue. Five times in the decision Obrien characterizes the reply portion of the joint submission as optional. Nor did the district court treat Obrien's submissions as forfeiting the issue. Obrien further noted that the supplemental rules classify a reply as optional. No forfeiture of the forfeiture issue occurred. This holding has broad civil procedure applications on whether an issue is preserved on appeal. Where the reply is optional, a party does not have an obligation to respond to every argument made by the opposing party -- but clearly the party with the burden of proof or persuasion should address all issues. We will discuss that in a future blog post. 

The merits question asks whether Obrien forfeited the issue of the ALJ's classification of past work as relevant. The Court relies on Sims v. Apfel for the judicially created administrative issue exhaustion requirement. Sims rejected the holding of several circuits that an issue not raised to the Appeals Council was waived under judicial review. Shaibi v. Berryhill addressed and applied forfeiture of step five findings, challenges to vocational testimony must be raised to the ALJ or Appeals Council. Obrien further addressed Carr v. Saul for the non-forfeiture of appointments clause challenges. 

Applying Sims, Shaibi, and Carr, the court observed that the issue of the existence of past relevant work and the ability to perform past relevant work were squarely raised in the notice of hearing. The ALJ found the existence and ability to perform past relevant work but did not explain those findings. Those issues exist essentially or permanently in the step four requirements for past work, relevance, and the ability to perform described in the regulations. Obrien's contentions that one occupation exceeded his RFC and the others were either too long ago or not substantial gainful activity did not rest on any new evidence but on the record before the ALJ. Obrien then cautions that raising issues is still required where new evidence is submitted as in Shaibi and Meanel v Apfel. 

On the merits, Obrien considers whether work performed outside of the 15-year period. Obrien rejects the district court unadvocated position that 15 years is measured from the initial determination. The ALJ did not invoke the discretionary portion that generally 15 years is the measure. Therefore, any work performed outside of 15 years prior to the date last insured cannot meet the recency test of past relevant work. 

Obrien advocated that he worked from January to April 2009 and that his posted earnings should be averaged over four months. The Commissioner argued that because Obrien had called January to April 2009 three months, his earnings should be averaged over three months. The court noted that SSR 83-35 suggested averaging over calendar months worked. The court further observed that neither party relied on POMS DI 10505.015 suggesting that averaging must account for partial months of work activity. POMS states that months and earnings in partial months should not be used in calculating average earnings. The court found no basis in the record to allocate the earnings. The court further noted that it would not resolve the issue because even if Obrien worked 3.25 months, his earnings would fall below substantial gainful activity. The problem with the court's journey down the un-briefed rabbit hole is that POMS does not count fractions, it either includes the month and the earnings or it excludes both.  

Obrien ends the analysis with the duty to develop the record. Substantial evidence does not support the ALJ decision triggering the duty to develop. This holding represents a protentional restriction on the duty to develop theory. The duty to develop theory typically rests on a record that was underdeveloped but in that state supports a denial of benefits. 

As the coup de grace, footnote 8 ends the litigation over the application of five-year rule for past relevant work as applied to cases final before June 22, 2024. Obrien cites 89 Fed. Reg. 48138 (June 5, 2024). In none of the unpublished cases preceding Obrien did either the Commissioner or the Court cite the clear statement in that de facto amendment of the final rule amending 20 CFR secs. 404.1560, 404.1565). 

Obrien represents a win for claimants seeking review on the increasingly frequent resort to forfeiture, the civil procedure question of the role of the reply brief in transcript litigation, the duties of the ALJ to make findings in the five-step sequential evaluation process, and the need for articulated findings even when the issue is typically without controversy at the past relevant work issue at step four. 

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Suggested Citation:

Lawrence Rohlfing, Past Relevant Work -- Obrien v. Bisignano, California Social Security Attorney (August 8, 2025) https://californiasocialsecurityattorney.blogspot.com

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

 

An Update on White v. Kiajakzi -- 2023 EAJA

In the rundown of 2022 published Ninth Circuit cases, I wrote:

White v. Kijakazi, 44 F.4th 828 (2022) - if the claimant submits rebuttal evidence in the form of Job Browser Pro to the Appeals Council, is a remand necessary to allow the ALJ to address the evidence and to resolve the inconsistency? Held, a remand is appropriate to allow the ALJ to resolve the inconsistency between the vocational testimony and the data provided by Job Browser Pro.

A number of district courts had held that the ALJ had no duty to address rebuttal evidence not in the DOT and had held that Appeals Council evidence was too late. See, Ford v. Saul.

In the 16 months since publication, courts have cited White 60 times according to Google Scholar. Those cases cite White for the application of Job Browser Pro 26 times. The Court of Appeals cited White in two unpublished memoranda and in the disastrous decision in Wischmann v. Kijakazi. 

On remand, White sought fee relief under the Equal Access to Justice Act. As an aside, everyone should have in their pocket that attorneys do not make money on circuit court appeals. It isn't that we don't get paid, it is that we don't get paid enough, never do. An appeal in any other area of law would generate fees between $60,000 and $100,000. It takes that much effort, skill, and a pinch of luck. The identity of the panel makes a difference, after all we lost in the USDC. 

Back to White's application for fees. Magistrate Judge Allison Claire denied the motion. Judge Claire found that the COSS was substantially justified:

Indeed, the undersigned initially ruled in favor of the Commissioner based on the law as it existed and was understood at the time.

Who cares? Three judges on the Ninth Circuit panel reversed because it was legal error to fail to consider and reconcile the Job Browser Pro evidence. Novelty of a legal question is not a basis for finding substantial justification. Judge Claire continued:

Although Buck v. Berryhill had been decided before this case was filed, neither party referenced it in their briefing, presumably because they were either unaware of the case or believed it did not apply to the facts presented in this case.

Attorneys on both sides of the case have an ethical responsibility to cite to the court the controlling authority. For the plaintiff's attorney, a failure might fall below the standard of care. For the government attorney, the agency acted without substantial justification because the conduct violated the duty of candor owed to the court. Judge Claire continued:

Further, the Ninth Circuit acknowledged an extension of Buck to the circumstances of this case, in which plaintiff did not raise the job availability discrepancy to the ALJ, writing "We recognize that the claimant in Buck submitted his estimated job numbers to the ALJ, and that White submitted his estimated job numbers to the Appeals Council. This distinction is not fatal."

The problem for this analysis, even if factually correct, is that it does not matter. Sims v. Apfel erased the AC issue exhaustion because it is an inquisitorial process. Three justices rely on that proposition in the concurrence in Carr v. Saul. The controlling precedent in the Ninth Circuit is "or" in Meanel v. Apfel. Shaibi v. Berryhill states a best practice but permits submitting evidence to the AC. 

 In response, White raised three defenses to the COSS showing of substantial justification:

(1) the software producing more accurate job numbers was available at the initial ALJ determination level and the Commissioner advanced a false narrative while having ready access to more accurate numbers, 

That's right. The ALJ corps has Job Browser Pro on their desks. They also have the DOT. But they don't use them, at least not most or even a healthy plurality of ALJs perform the SSR 00-4p check much less check the sources cited. And the Ninth Circuit held that the Job Browser Pro evidence was probative because it contradicted the testimony of the vocational expert witness.

(2) the court of appeals held that the rebuttal evidence presented to the Appeals Counsel was significant, probative, and reasonably likely to change the outcome of the disability determination, yet the Appeals Counsel upheld the ALJ, and 

That is the holding of the panel. 

(3) the Commissioner's own vocational expert witness made false statements about job availability, and this misconduct cannot be substantially justified. 

The agency and the courts continue to embarrass themselves and hold the system to shame for accepting and excusing vocational witness prevarication. Justice Gorsuch wrote in his dissent in Biestek that false testimony cannot be substantial evidence whereas the majority affirmed the nonsensical proposition that nut sorter represented a significant number of jobs. No serious person really believes the nonsense that the witness testified to in Biestek. 

The majority in the EAJA appeal rejected the COSS defense and reversed the district court. The agency must clarity and develop the record when there is a vast difference in job numbers. The majority focused on the position of the government as a whole, not isolated aspects. The bottom line advanced by the COSS was that the agency should always be allowed to rely on the vocational witness because they have talismanic insight into the existence, requirements, and numbers of jobs. The majority held that the single sentence in the COSS answering brief that contended that the submission to the AC was reasonable and sufficient to raise a barrier of substantial justification. The majority disagreed. Circuit precedent clearly permits submission of evidence to the AC. 

Judge Miller dissented. He would hold that the COSS was reasonable -- substantially justified. What Judge Miller does not address is Brewes. And that it fatal to his dissent. 

If I represented the COSS, which I don't, I would have argued Ford v. Saul. There, the Court held that rebuttal vocational evidence was subject to the five-day rule and the untimely request for a subpoena was too little too late. Ford is wrong for several reasons but we can discuss that another day. And I suggested that with my see comment in the year rundown. 

Kudos John Metsker on the merits and on the fee appeal. Well done. 

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Suggested Citation:

Lawrence Rohlfing, An Update on White v. Kiajakzi -- 2023 EAJA, California Social Security Attorney (December 7, 2023)

https://californiasocialsecurityattorney.blogspot.com

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

A Word About Numerosity

That is the title of the section of the court decision in Anthony D. v. Saul, CV 19-134 MRW.  It is not available on Google Scholar or WestLaw.  Here are the important snippets from the court decision by Magistrate Judge Wilner:

13 ... Some judges [fn. 1] doubt whether the twentieth century's DOT (last revised in 1991) remains a legitimate, dependable source of employment data in contemporary America. The database continues to trumpet the availability of jobs that simply don't exist anymore.

14. It is especially eye-opening that the U.S. Department of Labor endorses a competing compilation (the O*Net) as the "primary source of occupational information" for use in industry and litigation — even as the Labor Department explains that it posts DOT information on its website solely as an accommodation to the Social Security Administration. (oalj.dol.gov/LIBDOT.HTM (accessed Jan. 9, 2020).)

15.  Plaintiff makes colorable arguments as to why SSR 00-4p should not receive Kisor-Auer deference. Counsel also may have my ear some day in asserting that vocational expert testimony based on archaic DOT job data and descriptions does not constitute "substantial evidence" adequate to support an adverse agency ruling. Biestek v. Berryhill, U.S. , 139 S. Ct. 1148, 1154 (2019). However, because the action is remanded on another ground, I get to duck the issue today.

16.  By the way, so did the Ninth Circuit in Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2017). The government is literally correct in quoting the passage from Shaibi that the circuit could "find no case, regulation, or statute suggesting" that an ALJ must turn to other data sources in lieu of the DOT. (Docket # 21 at 23 (quoting Shaibi, 883 F.3d at 1109).) But the Ninth Circuit clearly did not view that issue as either ripe or preserved at the time — the main and obvious holding in the case was that Mr. Shaibi "forfeited his challenge to the VE's job numbers." Id., 883 F.3d at 1108.

17.  Are other aspects of the decision merely nonbinding dicta? Perhaps Pasadena will deal with this roiling question soon. If so, the agency may need to reconsider its defense of the dusty DOT data.  

And footnote 1 lists some cases casting doubt on blind application of the DOT:

Including me. See Analia D. v. Berryhill, No. CV 18-3869 MRW, 2019 WL 856854 at *2 (C.D. Cal) ("To that end, a growing number of courts have resisted agency findings that historic jobs — like those involving the word processing devices formerly known as typewriters — exist in substantial numbers in the 2019 economy. See, e.g., Skinner v. Berryhill, No. CV 17-3795 PLA, 2018 WL 1631275 (C.D. Cal. Apr. 2, 2018) (`addresser' jobs have 'significantly dwindled in number since 1991 in light of technological advances'); Hilda V.A. v. Berryhill, No. ED CV 18-195 KES, 2018 WL 5291930 (C.D. Cal. 2018) (discussing percentage of time that 'accounting clerk' currently spent on keyboarding tasks); Boomhower v. Berryhill, 2017 WL 7167116 (D. Or. 2017) (remanding for determination whether 'addresser' and 'nut sorter' are jobs 'still performed' as described in DOT); Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014) (retired Circuit Judge Posner's doubts about the validity of job information for positions like 'pin setter, phrenologist, leech collector, milkman, pony express rider, and daguerreotypist').") 

We will make progress in this endeavor if we persevere and fastidiously demand that the agency produce reliable evidence of the existence of work.

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SUGGESTED CITATION:

Lawrence Rohlfing, A Word About Numerosity, California Social Security Attorney (February 11, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/02/a-word-about-numerosity.html

Oral Argument in Keifer v. Saul -- Extension of Full Waiver Rules to Non-Attorney Representatives

I argued Keifer v. Saul to the Ninth Circuit on December 2, 2019.  The issue is simple, the vocational expert identified the number of production jobs, twice, and claimed that the entire OES group applied, twice, to both sedentary 1-2 step occupations.  The VE did the same with a filling machine operator occupation and an inspector occupation.  The non-attorney representative did not present the conflict to the ALJ.  The case was a prior remand from the District Court.  The case bypassed the Appeals Council.

Keifer asked the USDC to take notice of the Occupational Employment Statistics showing the exact number of jobs identified by the VE in all four occupations and the Occupational Outlook Handbook to show that the occupations required moderate-term on-the-job training -- semi-skilled or skilled as typically performed.  The USDC found waiver applied to the non-attorney representative, extending Meanel v. Apfel and Shaibi v. Berryhill.

Judge Callahan suggested that the court treat pro pers from administrative proceedings in the same way that they do in federal court proceedings -- no slack.  Judge Bade wondered how the differential treatment crept into the law.  Visiting Judge Lucero did not appear too concerned about the origin of the concept.

My prediction is simple.  The court will extend issue waiver before the ALJ to non-attorney representatives.  The duty to present evidence to the ALJ will extend from "at least where represented by counsel" to "where represented by any professional representatives."  The issue of pro per claimants is is not before the court.

Te court will drive the fulcrum between McLeod v. Astrue, permitting the claimant to submit VA evidence to the court, and Chaudhry v. Astrue, because here we have a representative that is registered and qualified for direct payment -- a professional representative.

There is a discussion about the ramifications of waiver -- legal or professional malpractice.  Where the case is clearly on the cusp, failure to develop the conflicting evidence will likely fall below the standard of reasonable care.  Sedentary 1-2 step work does not exist, at least not  in significant numbers based on a reliable method for extrapolating local experience to the national economy.  Ask the vocational expert:

1. What is your source
2. What is your methodology
3. Replicate the source and methodology
4. Submit that evidence to the ALJ
5. Force the ALJ to resolve the conflict in the evidence
6. Seek review by the Appeals Council
7. Seek review by the District Court

Expect a decision early next year in Keifer.  This is another step where the courts demand that if we believe the VE testimony is insubstantial, we must prove it ... to the ALJ.
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SUGGESTED CITATION:

Lawrence Rohlfing, Oral Argument in Keifer v. Saul -- Extension of Full Waiver Rules to Non-Attorney Representatives, California Social Security Attorney (December 4, 2019),
http://californiasocialsecurityattorney.blogspot.com/2019/12/oral-argument-in-keifer-v-saul.html

The Impending Death of Auer Deference Predicted, Again

Kisor v. Wilkie is now pending before the U.S. Supreme Court.  The question presented is:

Whether the court should overrule Auer and Seminole Rock. 

Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. simply hold that an administrative agency will get deference in the interpretation of an ambiguous regulation “unless plainly erroneous or inconsistent with the regulation.”  From my count, there are at least five justices that are ready to overrule Auer and Seminole Rock. 

Kisor filed his opening brief on the merits last week.  Kisor argues that Auer and Seminole Rock were wrongly decided.  Seminole Rock threw the deference doctrine out into the jurisprudence without analysis and lay dormant for decades until given life support in 1989 (Robertson v. Methow Valley Citizens Council) and revived in 1997 (Auer).  Kisor argues that the deference doctrine is inconsistent with the Administrative Procedures Act; destabilizes administrative law because agencies can change the application or interpretation of the stable regulation without notice and comment; violates the separation of powers doctrine; and is not fairly within the ambit of the Chevron doctrine, which rests on notice and comment.  

Kisor argues that the Court should not shackle itself to stare decisis.  Auer and Seminole Rock were wrong when decided; they do not interpret a statute or the Constitution; private parties do not rely on the continued application of Auer and Seminole Rock; and circumstances have changed warranting rejection of stare decisis.

It is really the third point on private party reliance on Auer and Seminole Rock that I have slight disagreement.  My response is simple, “sometimes.”  Sometimes private parties do rely on the publication of a sub-regulatory promulgation for enforcement of the regulation.  An example would be Social Security Ruling 00-4p. 

That ruling harmonized a split in the circuits for the proposition that administrative notice required the ALJ to resolve conflict between the vocational expert and the Dictionary of Occupational Titles as well as the Selected Characteristics of Occupations.  Prior to the ruling, most circuits required resolution of the conflict; one circuit arguably did not require resolution; and one circuit clearly allowed the ALJ to accept deviant VE testimony.  SSR 00-4p normalized the application of the resolution and expanded the regulation to require an inquiry and inclusion of the SCO in the process.  For claimants claiming DOT/SCO error, the expanded nature of the ruling going beyond the four corners of the regulation is helpful. 

But the ruling gave and took away.  While the administrative notice regulation lists sources other than the DOT is primary and requiring resolution, it does not list the Occupational Outlook Handbook or County Business Patterns.  At least one circuit court rejects post hoc reliance on conflict with the OOH and CPB as a basis for reversing the ALJ decision.  That isn’t the only problem with SSR 00-4p.  The ruling misrepresents that maximum-typicality nature of the DOT listings.  The ruling treats the DOT/SCO as primary to the exclusion of other reliable data.  If the Commissioner had published the ruling through notice and comment, the public could have pointed out the deficiencies and the Commissioner would have been forced to address those problems and concerns in the final rule.  And that my friends is why Auer and Seminole Rock need to die.  The rulings would continue to bind the ALJ but would not bind the claimants or the court. 

How the Court comes down after the Solicitor General weighs in next month and hears argument this Spring is the open question.  Mark this observer down as optimistic that this case will chip away at the overreach of administrative agencies and the Social Security Administration. 

Presenting Evidence of Job Numbers and Waiver

On May 18, 2017, I argued Shaibi v. Berryhill to a panel of the Ninth Circuit.  That led to the panel decision.  The court found that:

We now hold that when a claimant fails entirely to challenge a vocational expert's job numbers during administrative proceedings before the agency, the claimant waives such a challenge on appeal, at least when that claimant is represented by counsel.

Shaibi isn't final.  Despite being issued on August 22, 2017, the mandate has not issued.  Shaibi filed a petition for rehearing and rehearing en banc that remains pending with the court.  The question is whether the Occupational Outlook Handbook and County Business Patterns have the same status as the Dictionary of Occupational Titles -- the claimant can bring that evidence in at the judicial review level for the first time.  While I think the answer is yes, I am not optimistic.

On November 14, 2017, I argued Holden v. Berryhill to a panel of the Ninth Circuit that included Judge Murguia, a member of the Shaibi panel.  Holden did not have an attorney representative at the hearing -- he had a non-attorney representative at the hearing.  The Commissioner argues that a non-attorney qualified for direct payment of fees passes a test, maintains insurance, and qualifies as counsel under the Shaibi and Meanel test.  The panel did not press OGC on that concept that "counsel" includes non-attorneys. 

This is your pre-decision warning and notice.  Shaibi will likely survive and Holden will likely expand the waiver doctrine to include non-attorneys that are eligible for direct payment.  Whenever the vocational expert gives job numbers and the representative thinks that there is a real possibility that the ALJ will accept the vocational expert testimony to deny the case, the representative must break out the books, fire up the computer, print the pages, and present the contrary data to the ALJ and to the Appeals Council. 

I am not addressing the clear loser case.  A younger individual capable of a limited range of light work but still capable of the full range of sedentary work -- the claimant loses on the sedentary grid table.  Likewise, a person closely approaching advanced age capable of a narrow range of medium work but still capable of a wide range of light and sedentary work -- the claimant loses.  We are concerned about those cases where if the claimant cannot perform the identified work, and work of the same ilk, that the claimant wins.  A limited range of sedentary work at all ages; a limited range of light work for a person 50-54; a person over 55 with a limited range of medium work -- those cases require the full-court press. 

I said this at NOSSCR in September -- if you don't want to press the job numbers on the cusp cases, don't take the cusp cases.  If you take the case and don't present evidence of VE fraud (yes, I used that word), then don't be surprised if the claimant gets his/her benefits through a civil action for malpractice.  We need to start taking the cusp cases seriously and not depend on the lottery that this claimant will get one of those ALJ's that understands the mendacity of the vocational experts or that the disability bar is not supposed to be a hike up Mount Everest.  Those judges are not in the majority -- they are in the increasingly small minority.