Sarahrose Kilpatrick v. Kilolo Kijakazi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARAHROSE KILPATRICK, No. 20-35741

Plaintiff-Appellant,

D.C. No.

v. 6:19-cv-01640-

BR

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted October 8, 2021

Portland, Oregon

Filed May 27, 2022

Before: William A. Fletcher, Sandra S. Ikuta, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress

2 KILPATRICK V. KIJAKAZI

SUMMARY *

Social Security

The panel affirmed the district court’s judgment

upholding the Commissioner of Social Security’s denial of a

claimant’s application for Social Security disability benefits.

In accordance with Social Security Act regulations, an

administrative law judge (“ALJ”) is entitled to rely on a

vocational expert’s testimony to support a finding that the

clamant can perform occupations that exist in significant

numbers in the national economy. See 20 C.F.R.

§§ 416.960(b)(2), 416.966(e). Relying on Buck v. Berryhill,

869 F.3d 1040, 1052 (9th Cir. 2017), the claimant argued

that because her counsel filed a post-hearing submission that

provided different national job numbers than the VE, “the

ALJ was required to consider the conflicting information

about job numbers and resolve any conflicts.” Id.

The panel held that the claimant read Buck too broadly,

and Buck did not create the categorical obligation that

claimant sought to impose. To engage in meaningful review

of a disability claim, an ALJ may not ignore significant

probative evidence that bears on the disability analysis, but

an ALJ need not discuss all evidence that was presented.

Unlike in Buck, claimant’s attorney did not replicate the

VE’s methodology, and claimant’s different approach led to

different numbers. There is no basis to conclude that these

results qualified as significant probative evidence that the

ALJ was required to address. Claimant’s attorney had no

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

KILPATRICK V. KIJAKAZI 3

identified expertise in calculating job figures in the national

economy.

Claimant also argued that the ALJ’s failure to resolve the

conflict between job number estimates violated the Social

Security Administration’s procedural requirements. The

panel held that this argument lacked merit. Under Social

Security Ruling 00-4p, ALJs must identify and obtain a

reasonable explanation for any conflicts between

occupational evidence provided by VEs and information in

the Dictionary of Occupational Titles (DOT). No such error

occurred here where the ALJ specifically asked the VE

whether his testimony conflicted with the DOT, and the VE

confirmed it did not.

COUNSEL

Christopher H. Dellert (argued), Dellert Baird Law Offices

PLLC, University Place, Washington, for Plaintiff-

Appellant.

Christopher Brackett (argued), Special Assistant United

States Attorney; Lisa Goldoftas, Assistant Regional

Counsel; Mathew W. Pile, Regional Chief Counsel, Seattle

Region X; Renata Gowie, Civil Division Chief; Scott Erik

Asphaug, Acting United States Attorney; Office of the

General Counsel, Social Security Administration, Seattle,

Washington; for Defendant-Appellee.

4 KILPATRICK V. KIJAKAZI

OPINION

BRESS, Circuit Judge:

In denying Sarahrose Kilpatrick’s request for Social

Security disability benefits, an Administrative Law Judge

(ALJ) relied on the testimony of a vocational expert to

conclude that a person with Kilpatrick’s limitations, age,

education, and work experience could still perform jobs that

exist in significant numbers in the national economy. On

appeal, Kilpatrick claims that the ALJ erred in not

addressing competing job numbers that her counsel provided

using his own methodology. We have held in the context of

similar challenges to ALJ decisions that an ALJ need only

explain his rejection of significant probative evidence. We

hold here that this same standard applies to the ALJ’s

consideration of competing job numbers that conflict with

those provided by a vocational expert. Because Kilpatrick’s

counsel’s submission did not qualify as significant probative

evidence, the ALJ was not required to address it. We thus

affirm the judgment of the district court upholding the denial

of benefits.

I

In 2015, Kilpatrick, then age 35, applied for disability

insurance benefits and Supplemental Social Security Income

under the Social Security Act. She alleged she was disabled

due to physical impairments, including lumbar degenerative

disc disease, obesity, and carpal tunnel syndrome. In

February 2016, and later, upon reconsideration in July 2016,

the Commissioner of Social Security denied Kilpatrick’s

claims, concluding she was not disabled.

Kilpatrick requested a hearing before an ALJ, which

took place in July 2018. Kilpatrick testified at the hearing,

KILPATRICK V. KIJAKAZI 5

where she was represented by her counsel, Timothy

Anderson. The ALJ also heard testimony from D.T. North,

an impartial and neutral vocational expert, or “VE.” North,

who had over a decade of professional experience, was

certified as an expert by the American Board of Vocational

Experts, had published on disability management, and held

a Master of Science degree in Organizational Development.

Kilpatrick’s attorney stipulated to North’s qualifications.

The ALJ asked North whether any jobs existed in

significant numbers in the national economy that an

individual with Kilpatrick’s limitations, age, education, and

work experience could perform. North identified three such

representative jobs: (1) usher, with an estimated 64,000 jobs

nationally; (2) children’s attendant, with an estimated 50,000

jobs nationally; and (3) sandwich board carrier, with an

estimated 9,500 jobs nationally.

North testified that he had experience analyzing these

jobs and that his testimony was consistent with the

Dictionary of Occupational Titles (DOT). The DOT is a

detailed volume published by the Department of Labor that

contains descriptions of occupations that exist in the national

economy, while identifying the required skill level and

physical requirements for each occupation. See C.

Kubitschek & J. Dubin, Social Security Disability Law &

Procedure in Federal Court § 3:93 (2021); Gutierrez v.

Colvin, 844 F.3d 804, 807 (9th Cir. 2016); see also Zavalin

v. Colvin, 778 F.3d 842, 845–46 (9th Cir. 2015) (describing

the DOT as the Commissioner’s “‘primary source of reliable

job information’ regarding jobs that exist in the national

economy”) (quoting Terry v. Sullivan, 903 F.2d 1273, 1276

(9th Cir. 1990)).

In response to Anderson’s cross-examination, North

explained his methodologies, including his use of a software

6 KILPATRICK V. KIJAKAZI

program, for identifying the number of jobs in the national

economy for each of the representative occupations that he

determined a person like Kilpatrick could perform. North

also explained that he had limited his estimated job numbers

to full-time positions only. Nevertheless, Anderson still

questioned whether North’s job numbers were correct. The

ALJ permitted Anderson to submit a post-hearing brief on

the issue within ten days.

Sixteen days later, Anderson submitted a letter objecting

to North’s calculations and maintaining that, in the national

economy, there were in fact only 6,080 full-time usher

positions, 6,080 full-time children’s attendant positions, and

3,115 full-time sandwich board carrier positions. To arrive

at these numbers, Anderson relied on 2011 data published by

the Department of Labor in its Occupational Employment

Statistics (“OES”). The OES is a source of national job

numbers, although it is not directly correlated to the DOT.

See Chavez v. Berryhill, 895 F.3d 962, 965–66 (7th Cir.

2018). In his letter, Anderson acknowledged that his

estimates were not based on “the specific job DOT number

which is commonly reported by the vocational expert.”

To obtain his competing job numbers, Anderson

employed what he termed the “straight-line method.”

Anderson began with the number of jobs in each OES

occupation group, divided it by the number of DOT

occupations within that group, then multiplied that by the

percentage of full-time jobs for the larger OES group. For

example, for the usher position, Anderson wrote: “Usher –

National OES – 105,560 ---- 5 DOTs within OES 105,560 /

5 = 21,112 jobs. Only 28.8% is full-time. ----- 21,112 x

28.8% = 6,080 jobs nationally.” In other words, the OES

showed there were 105,560 jobs nationwide in the

occupation group of “Usher,” and that occupation group

KILPATRICK V. KIJAKAZI 7

includes five DOT occupations. Without any information on

the number of jobs associated with each of the five

occupations, Anderson divided the 105,560 jobs in the Usher

group equally by five, estimating 21,112 jobs for each DOT

occupation in the group. Because only 28.8 percent of jobs

in the OES Usher group are full-time positions, Anderson

estimated that only 28.8 percent of the 21,112 jobs in each

of the five DOT occupations were full-time, and therefore

concluded that each of the five DOT occupations had 6,080

full-time jobs. Anderson acknowledged that his “straight-

line method” “may not be completely accurate,” but claimed

it was “the best we can do with the data we have available.”

The lower job figures calculated with this method, Kilpatrick

argued, were not “significant” enough in number, and thus

did not preclude a disability determination.

On September 6, 2018, the ALJ issued a decision finding

that Kilpatrick was not disabled. In making this

determination, the ALJ followed the Social Security Act’s

required five-step sequential evaluation process. 20 C.F.R.

§ 404.1520(a)(4). At step one, the ALJ determined that

since Kilpatrick’s alleged disability onset date of

February 12, 2015, Kilpatrick had not engaged in

“substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i).

At step two, the ALJ found that Kilpatrick’s lumbar

degenerative disease, obesity, and carpal tunnel syndrome

were severe medical impairments. Id. § 404.1520(a)(4)(ii).

At step three, the ALJ found that Kilpatrick’s impairments

did not equal any listing, and that she was therefore not per

se disabled. Id. § 404.1520(a)(4)(iii).

At step four, the ALJ examines the claimant’s symptoms

and decides if her “residual functional capacity” permits her

to perform any past relevant work. Id. § 404.1520(a)(4)(iv).

The ALJ concluded that Kilpatrick could perform “light

8 KILPATRICK V. KIJAKAZI

work,” which included “lift[ing] 20 pounds occasionally and

10 pounds frequently” and certain time standing or walking,

with regular breaks. But the ALJ found that Kilpatrick’s

residual functional capacity precluded her from performing

any of her relevant past work.

The ALJ thus proceeded to step five, where the burden

shifts to the Commissioner to prove that the claimant can

perform a significant number of jobs that exist in the national

economy given the claimant’s residual functional capacity,

age, education, and work experience. 20 C.F.R.

§§ 404.1520(a)(4)(v), 404.1560(c); Ford v. Saul, 950 F.3d

1141, 1149 (9th Cir. 2020). Here, the ALJ relied on the VE’s

testimony that notwithstanding Kilpatrick’s limitations, she

could still “perform the requirements of representative

occupations such as usher . . . children’s attendant . . . and

sandwich board carrier,” which the ALJ found existed in

significant numbers in the national economy. Thus, the ALJ

concluded that Kilpatrick was not disabled. Earlier in his

decision, the ALJ noted that he had received Anderson’s

post-hearing submission and had admitted it into evidence.

But the ALJ did not comment on that submission further.

The Appeals Council denied Kilpatrick’s request for

review. The district court then affirmed the Commissioner’s

denial of benefits. This appeal followed.

II

We “review the district court’s order affirming the ALJ’s

denial of social security benefits de novo, and will disturb

the denial of benefits only if the decision contains legal error

or is not supported by substantial evidence.” Lambert v.

Saul, 980 F.3d 1266, 1270 (9th Cir. 2020) (quoting

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)).

Kilpatrick principally argues that the ALJ committed legal

KILPATRICK V. KIJAKAZI 9

error by crediting the VE’s testimony about the number of

jobs that exist in the national economy that Kilpatrick could

perform, without assessing the competing job numbers that

Anderson advanced in his post-hearing submission.

Kilpatrick further argues that because the ALJ did not

resolve this alleged inconsistency, we cannot discern on

appeal whether substantial evidence supports the ALJ’s

determination at step five.

To evaluate Kilpatrick’s argument, it helps to have some

understanding of a VE’s role in the step-five component of

a Social Security disability proceeding. At step five, as we

have noted, the ALJ is tasked with determining whether a

person with the claimant’s limitations, age, education, and

experience can perform occupations that “exist in significant

numbers in the national economy.” 20 C.F.R.

§ 404.1560(c)(1). A VE provides testimony that aids the

ALJ in this determination. VEs are professionals who,

through their training and experience, have “expertise and

current knowledge of working conditions and physical

demands of various jobs; knowledge of the existence and

numbers of those jobs in the national economy; and

involvement in or knowledge of placing adult workers with

disabilities into jobs.” Biestek v. Berryhill, 139 S. Ct. 1148,

1152 (2019) (quotations and alterations omitted); see also

Kubitschek & Dubin at § 3:89.

The Social Security Administration (SSA) contracts with

VEs to provide “independen[t] and impartial[]” testimony

about the physical requirements and prevalence of different

jobs in the national economy. Soc. Sec. Admin., Vocational

Expert Handbook, 5 (June 2020); see also Biestek, 139 S. Ct.

at 1152; Kubitschek & Dubin at § 3:89. Due to their

specialized knowledge, the SSA recognizes VEs as “reliable

sources of occupational information in the evaluation of

10 KILPATRICK V. KIJAKAZI

disability claims.” Social Security Ruling, SSR 00-4p,

65 Fed. Reg. 75760 (2000); see also 20 C.F.R. § 416.966(e)

(authorizing VE testimony to assist in step-five

determinations).

In accordance with Social Security Act regulations, see

20 C.F.R. §§ 416.960(b)(2), 416.966(e), an ALJ is entitled

to rely on a VE’s testimony to support a finding that the

claimant can perform occupations that exist in significant

numbers in the national economy. See Ford, 950 F.3d

at 1160; Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.

1999). As we have observed, “Given its inherent reliability,

a qualified vocational expert’s testimony as to the number of

jobs existing in the national economy that a claimant can

perform is ordinarily sufficient by itself to support an ALJ’s

step-five finding.” Ford, 950 F.3d at 1160. Indeed, a VE’s

expert opinion “may count as substantial evidence even

when unaccompanied by supporting data.” Biestek, 139 S.

Ct. at 1155 (rejecting argument that VE testimony could

never qualify as substantial evidence when the VE refused

to produce her underlying data); see also Bayliss v.

Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“A VE’s

recognized expertise provides the necessary foundation for

his or her testimony. Thus, no additional foundation is

required.”).

But although VE testimony is “inherently reliable,” it is

“not incontestable.” Buck v. Berryhill, 869 F.3d 1040, 1051

(9th Cir. 2017). In Buck, a VE testified that the claimant

could work in the occupations of bottling line attendant,

bottle packer, and conveyer belt maker, which had national

job numbers of 600,000, 8,800, and 235,000, respectively.

Id. at 1047. But the claimant’s attorneys, “allegedly using

the same software program as the VE,” came up with very

different national job numbers: 231 bottling attendants,

KILPATRICK V. KIJAKAZI 11

2,039 bottle packers, and 26 conveyer belt makers. Id.

When the claimant attempted to cross-examine the VE on

the disparities, the ALJ limited the questioning but allowed

the claimant to file a post-hearing submission on the issue.

Id. The claimant did so, yet the ALJ then did not address the

matter in his decision. Id.

We held that the ALJ had an obligation to resolve the

dispute over the number of representative jobs the claimant

could perform. Id. at 1052. That was because “the vast

discrepancy between the VE’s job numbers and those

tendered by Buck, presumably from the same source, is

simply too striking to be ignored.” Id. We thus remanded

for the ALJ to address the inconsistency. Id.

Relying on Buck, Kilpatrick argues that because her

counsel filed a post-hearing submission that provided

different national job numbers than the VE, “the ALJ was

required to consider the conflicting information about job

numbers and resolve any conflicts.” We conclude, however,

that Kilpatrick reads Buck too broadly, and that Buck does

not create the categorical obligation that Kilpatrick seeks to

impose.

In the context of other challenges to an ALJ’s alleged

failure to address evidence, we have repeatedly held that an

ALJ “need not discuss all evidence presented to her. Rather,

she must explain why significant probative evidence has

been rejected.” Vincent ex rel. Vincent v. Heckler, 739 F.2d

1393, 1394–95 (9th Cir. 1984) (quotation marks omitted).

We have invoked this “significant probative evidence”

standard in a variety of contexts in which Social Security

claimants contended that an ALJ erred in not addressing a

given argument or piece of evidence. See, e.g., Hiler v.

Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012); Howard ex rel.

Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003);

12 KILPATRICK V. KIJAKAZI

Flores v. Shalala, 49 F.3d 562, 571 (9th Cir. 1995); Bellamy

v. Sec’y of Health & Human Servs., 755 F.2d 1380, 1382

(9th Cir. 1985), superseded on other grounds by regulation

as stated in Lambert, 980 F.3d at 1268. This standard

appropriately captures the competing interests at stake. To

engage in meaningful review of a disability claim, an ALJ

may not ignore significant probative evidence that bears on

the disability analysis. But at the same time, a rule requiring

ALJs to address every argument or piece of evidence,

however meritless or immaterial, would unduly detain ALJs

in their orderly consideration of Social Security disability

benefits claims.

There is no reason why our usual “significant probative

evidence” standard should not apply in the context of an ALJ

being presented with job numbers that conflict with those of

a VE. Indeed, Social Security Act regulations already

provide that, in determining the number of jobs that exist in

the national economy, the SSA “will take administrative

notice of reliable job information available from various

governmental and other publications.” 20 C.F.R.

§ 416.966(d) (emphasis added); see also Bayliss, 427 F.3d

at 1218 (“An ALJ may take administrative notice of any

reliable job information . . .”). Requiring an ALJ to consider

competing job numbers only if they constitute significant

probative evidence is also in keeping with the background

rule that “in the absence of any contrary evidence, a

vocational expert’s testimony is one type of job information

that is regarded as inherently reliable.” Ford, 950 F.3d

at 1160 (quoting Buck, 869 F.3d at 1051) (alterations

omitted).

We did not apply the “significant probative evidence”

standard by name in Buck, in which we remanded to the ALJ

to consider evidence that conflicted with the VE’s proffered

KILPATRICK V. KIJAKAZI 13

job numbers. 869 F.3d at 1052. But, in that case, specific

articulation of the governing legal standard was unnecessary

because the competing job numbers in that case easily

qualified as significant probative evidence. In Buck, as we

recounted above, the claimant’s attorneys allegedly used the

same computer software as the VE and yet generated vastly

different job figures. Id. at 1047, 1052.

While the competing evidence in Buck was “too striking

to be ignored,” id. at 1052, the same cannot be said here.

Unlike in Buck, Kilpatrick’s attorney did not replicate the

VE’s same methodology. It is thus not surprising that

Kilpatrick’s different approach led to different results. And

there is no basis to conclude that these results qualified as

significant probative evidence that the ALJ was required

specifically to address. Kilpatrick’s attorney, Mr. Anderson,

had no identified expertise in calculating job figures in the

national economy. See Tobeler v. Colvin, 749 F.3d 830, 834

(9th Cir. 2014) (noting that, under Vincent, an ALJ need not

discuss evidence that a lay witness is “not competent” to

provide). Kilpatrick thus acknowledges on appeal, with

some understatement, that Anderson “may not have the same

expertise as the vocational consultant.” And Anderson’s

own submission to the ALJ candidly conceded that his

figures “may not be completely accurate.”

That concession was warranted because there are

obvious reasons to question Anderson’s methodology.

Using 2011 data that was roughly seven years old at the time,

Anderson took the total number of jobs in each OES group,

divided by the number of DOT occupation titles within that

group, and then multiplied it by the percentage of full-time

jobs for the larger group. That required the improbable

assumption (and produced the improbable result) that jobs

within the same OES (here, usher and children’s attendant)

14 KILPATRICK V. KIJAKAZI

all had the exact same number of full-time jobs (in this case,

6,080). The Seventh Circuit has criticized an analogous

“equal distribution method” as “operat[ing] on the illogical

assumption that all job titles within a particular DOT job

group exist in equal numbers in the national economy.”

Chavez, 895 F.3d at 966. Kilpatrick, meanwhile, identifies

no support for her counsel’s approach. Under all these

circumstances, Anderson’s submission was not significant

probative evidence, and the ALJ did not err in not addressing

it.

Kilpatrick also argues that the ALJ’s failure to resolve

the conflict between job number estimates violated the

SSA’s procedural requirements. This argument lacks merit.

Under Social Security Ruling 00-4p, ALJs must “[i]dentify

and obtain a reasonable explanation for any conflicts

between occupational evidence provided by VEs . . . and

information in the Dictionary of Occupational Titles (DOT)

. . . .” Social Security Ruling, SSR 00-4p. An ALJ thus may

not rely on the testimony of a VE “without first inquiring

whether that expert’s testimony conflicts with the [DOT].”

Massachi v. Astrue, 486 F.3d 1149, 1150 (9th Cir. 2007).

No such error occurred here. The ALJ specifically asked

the VE whether his testimony conflicted with the DOT, and

North confirmed it did not. The ALJ thus expressly found

that North’s testimony was “consistent with” the DOT.

Kilpatrick provides no basis to question that determination.

The only conflict in the evidence she identifies is between

the VE’s testimony and her counsel’s competing job

numbers. And for the reasons we have explained, her

counsel’s estimated job numbers lacked a sufficient

KILPATRICK V. KIJAKAZI 15

foundation and thus did not warrant the ALJ’s further

consideration. 1

AFFIRMED.

1

In two letters filed pursuant to Federal Rule of Appellate Procedure

28(j), Kilpatrick for the first time challenged the constitutionality of the

Commissioner’s appointment and purported to raise additional

deficiencies in the VE’s job numbers. We do not address these new

arguments because “[a]n issue raised for the first time in a letter of

supplemental authorities under Fed. R. App. 28(j) is ordinarily deemed

waived.” United States v. Gomez-Mendez, 486 F.3d 599, 606 n.10 (9th

Cir. 2007). Kilpatrick also argues that the district court went outside the

administrative record in affirming the denial of benefits. But any error

was immaterial because our review of the district court is de novo,

Lambert, 980 F.3d at 1270, and we have concluded the ALJ did not err

in denying benefits.