Forfeiture of Step Five Vocational Issues -- Don't

Today, we examine Cain v. Bisignano, a published opinion by the Seventh Circuit Court of Appeals. Cain has a residual functional capacity for sedentary work with no public interaction. We can assume that Cain is a younger individual with more than a marginal education. Thomas Dunleavy testifies that such a person can work as a “sorter (18,000 jobs), assembler (20,000 jobs), and visual inspector (21,000 jobs).” The hearing representative did nothing. The representative requested review and did nothing. The representative in court attacked the job numbers as insubstantial. Cain found the issue forfeit. Cain is correct.

The five step sequential evaluation process is well- and long-established. 20 CFR § 404.1520. A reasonable representative is prepared to address:

1.   Earnings during the relevant period of alleged disability.

2.   The existence of medically impairments.        

a.     Are they determinable by accepted clinical and laboratory diagnostic techniques?

b.     Are the impairments severe – do they cause a significant impact of the ability to perform basic work functions?

3.   Do the impairments:

a.     Meet a listed impairment in Appendix 1?

b.     Equal a listed impairment in Appendix 1?

c.     What is the residual functional capacity that the person retains?

4.   Can the claimant perform past relevant work?

a.     Does the claimant have past relevant work?

i.            In the five years before the decision and/or before the date last insured?

ii.    That the claimant performed long enough to learn how to do it?

iii.   That the claimant performed as substantial gainful:

1.     Based on earnings?

2.     Based on value of the services where the person is not a bona fide employee?

b.     Does the past relevant work require more than the residual functional capacity?

5.   Can the person perform other work:

a.     Considering age;

b.     Considering education;

c.     Considering work experience (transferable skills);

d.     Does the work exist in significant numbers?

Some representatives fail to do their job at steps 4.a and 5. Those issues involve numbers and representatives are math phobic. According to the Dictionary of Occupational Titles, working as a lawyer (and any representative doing legal work should be held to that standard) requires mathematics level 4. The DICOT defines math level 4:

ALGEBRA: Deal with system of real numbers; linear, quadratic, rational, exponential, logarithmic, angle and circular functions, and inverse functions: related algebraic solution of equations and inequalities: limits and continuity and probability and statistical inference. GEOMETRY: Deductive axiomatic geometry, plane and solid, and rectangular coordinates. SHOP MATH: Practical application of fractions, percentages, ratio and proportion, measurement, logarithms, practical algebra, geometric constructions, and essentials of trigonometry.

SkillTRAN states that math level 4 requires basic algebra. In the modern era, representative must understand and use statistics. That ability is embedded in math level 4 and more clearly required by math level 5. Representatives have at least a masters’ level education. Representatives have the education to do math levels 4 and 5.

A representative must cross-examine the vocational expert and challenge job numbers and methodology. Doing nothing is probably below the standard of care. Let’s look at the job numbers:

 

Occupation	JBP	ORS	OEWS	EP	SOEUQ
Sorter 521.687-086	2,370	<<3,639 <<3,666	8,210 SOC-NAICS	8,500 SOC-NAICS	5,481
Dowel Inspector 669.687-014	193		6,290 SOC-NAICS	6,500 SOC-NAICS	238
Film Touch Up Insp. 726.684-050	1,067		35,230 SOC-NAICS	33,900 SOC-NAICS	2,800
Final Assembler 713.687-018	71	<350 <366	3,790 SOC-NAICS	4,800 SOC-NAICS	74

 

We quickly discover that sorter and inspector in reside in the same SOC, inspectors, testers, sorters, samplers, and weighers 51-9061. Final assembler is a production workers, all other (SOC 51-9199) occupation. Neither JBP nor the SOEUQ identify many jobs, certainly not the number offered by Dunleavy. My guess is that Dunleavy used an old version of the OEQ and was completely oblivious to the fact that he identified 51-9061 occupations twice with the second unclear if it was dowel or film touch up inspector.

What does a representative need?

1.   Job Browser Pro or OASYS from SkillTRAN.

2.   OccuCollect to get an ORS based number using the Employment Projections (OOH) or OEWS job numbers.

3.   OEQ and SOEUQ.

Why? Because vocational experts use SkillTRAN, the ORS with the OOH or OEWS gross job numbers, and/or the OEQ/SOEUQ from US Publishing. If we don’t have ready access to SkillTRAN, OccuCollect, AND US Publishing data to cross-examine the witness on the fly, right there, right now, we will let the vocational witness steal from the client and rob the representative of fees.

Disjointed complaining is not sufficient.

1.   What is your methodology?

2.   Is your testimony consistent with:

a.   Job Browser Pro/OASYS?

b.   ORS using OEWS/EP?

c.    OEQ and for sedentary occupations SOEUQ?

3.   Is your testimony an accepted methodology in the community of vocational experts?

a.   Is your methodology unique to you?

While we ask those six questions, we pull up the source identified in question 1 or the three subparts of question 2. Then we read the data to the judge. We submit the data to the judge after the hearing. We used to drive back to the office. Now we use commute time to submit rebuttal briefs. Dunleavy’s testimony is typical of lazy witnesses that give the ALJ what the witness thinks the ALJ wants to hear. We must expose the lack of rational foundation for that testimony.

Don’t let Cain be the bane or your experience.

  ___________________________

Suggested Citation:

Lawrence Rohlfing, Forfeiture of Step Five Vocational Issues -- Don't, California Social Security Attorney (August 11, 2025, revised August 15, 2025) 

https://californiasocialsecurityattorney.blogspot.com

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

 

 

Brown v. Arizona -- The Scope of En Banc Review and Resuscitating Waived or Forfeited Issues

Brown v. Arizona rests on horrific facts. Bradford abused three women while a student at the University of Arizona. Brown brought an action seeking to impose liability on the university (state) for the abuse that she endured under Title IX, 20 U.S.C. §§ 1681–1688. The District Court and the three-judge panel decision rules against Brown on the context, authority, and indifference elements (of five elements of the claim for relief) for imposing liability. The issue centers around the context element. Brown changed her theory before the en banc court. I write to discuss how and why the Court allowed Brown to change her theory of the case not advanced in the District Court and not advanced to the three-judge panel. 

From the panel decision, Brown argued that:

she does not have to show that the University controlled the context of her abuse, only that the University controlled the context in which it improperly failed to act, i.e., Bradford's assaults on [two other students].

Judge Forrest, joined by Judge Nelson, described the dissent as rejecting Brown's theory. Judge W. Fletcher characterized the briefing: 

Brown argues that because the University had control over the context of Bradford's assaults on Student A and DeGroote, it necessarily had control over the context of Bradford's subsequent assaults on other university students including Brown, regardless of where in the community the assaults took place.

Judge Fletcher rejected that theory of the case and describes the facts supporting a different theory that satisfies the "context" element. Brown petitioned for en banc review. The majority of nonrecused judges voted to rehear the case en banc. Ordinarily, the en banc panel rehears the case without further briefing. It is clear that on the theory pressed in the District Court and before the three-judge panel that Brown loses. No judge accepted her "context" theory of the case. Brown asks for and the Court grants the opportunity to submit further briefing. 

On en banc review, Brown wins 8-3. Judge Forrest wrote the panel majority decision but was not on the en banc panel. Judge Fletcher writes the majority opinion. Judge Nelson, Judge Rawlinson, and Judge Lee write separate dissents. Judge Friedland responds to the waiver argument raised by Judge Nelson and Judge Rawlinson. We start with Judge Nelson's dissent.

Judge Nelson describes Brown has having "expressly disclaimed that position below and before the three-judge panel on appeal." Judge Nelson worries that "the majority encourages future plaintiffs to hed the ball on their arguments for strategic litigation advantage." As a practitioner before the Court of Appeals, I want to go on record and assure Judge Nelson and the rest of the Court that plaintiffs and appellants actually try to make the best attempt to frame the issues and theories. That attempt does not bind the courts to doing something that is different. For instance, in the seminal Erie Railroad Co. v. Tompkins, no party advocated the proposition adopted -- that the federal courts adopt and apply state court decisions construing the common law in a diversity action. The courts have a responsibility to articulate the law correctly even when the parties have chased the wrong rabbit down the wrong hole. 

Judge Friedland says that in her concurrence. Judge Friedland posits that if the panel had rejected Brown's claim on the theory pressed in an unpublished memorandum decision, the case would have died. Because the panel published the opinion and discussed the law of "context" at length in both the majority and dissenting opinions, "it is crucial that we get the law right." 

Judge Rawlinson expresses the vigorous and rigorous adherence to the twin pillars of waiver and forfeiture. Citing Hamer v. Neighborhood Hous. Servs. of Chi.:

Waiver is the “intentional relinquishment or abandonment of a known right.” Id. (citation omitted). Forfeiture is the “failure to make the timely assertion of a right.” Id. 

Waived issues are not reviewable. Forfeited issues are reviewed for plain error. Judge Rawlinson characterizes the disclaimed issue as one of forfeiture by the majority. Judge Rawlinson argues that no case allows the courts to review an argument "affirmatively disclaimed by a party." Judge Rawlinson would instead treat the disclaiming of a theory as one of waiver barring review of that issue. 

Judge Friedland responds that the Court cannot permit a published opinion to incorrectly state the law. Published opinions constitute precedent. It is the obligation of the en banc court to ensure that the body of precedent correctly states the law. 

The Court let Brown off the hook. The case presents compelling facts that cry for relief. Shifting theories from the district court to the court of appeals will almost always result in a complete and total loss. That does not mean that the opening brief in the court of appeals should not address the holding of the district court, it should. But now, Brown is undeniably the law of the circuit not only on Title IX but on the procedural ability under the right facts to shift the theory of the case and pray for the court's discretion.

Not planning on trying this, intentionally.

___________________________

Suggested Citation:

Lawrence Rohlfing, Brown v. Arizona -- The Scope of En Banc Review and Resuscitating Waived or Forfeited Issues , California Social Security Attorney (September 28, 2023) https://californiasocialsecurityattorney.blogspot.com

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