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.