Tyrone White v. Kilolo Kijakazi ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYRONE L. WHITE, No. 20-16846
Plaintiff-Appellant,
D.C. No.
v. 2:19-cv-01498-
AC
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of California
Allison Claire, Magistrate Judge, Presiding
Argued and Submitted November 18, 2021
San Francisco, California
Filed August 8, 2022
Before: Mary M. Schroeder, William A. Fletcher, and
Eric D. Miller, Circuit Judges.
Opinion by Judge W. Fletcher
2 WHITE V. KIJAKAZI
SUMMARY*
Social Security
The panel reversed the district court’s decision granting
summary judgment to the Commissioner of Social Security
and affirming the denial Tyrone L. White’s claim for
Supplemental Security Income (“SSI”) benefits, and
remanded to the district court with directions that the case be
remanded to the agency for further proceedings.
An Administrative Law Judge (“ALJ”) denied White
benefits based on the testimony of a vocational expert (“VE”)
that there were an estimated 72,000 “Table worker,” 65,000
“Assembler,” and 32,000 “Film touch up inspector” jobs in
the national economy that claimant could perform. After the
ALJ issued her decision, claimant’s attorney submitted to the
Social Security Administration (“SSA”) Appeals Council
different estimates for those same jobs, allegedly using the
same software program used by the VE. The Appeals
Council considered the new evidence but denied claimant’s
request for review.
The panel held that under Buck v. Berryhill, 869 F.3d
1040 (9th Cir. 2017), remand was required to allow the ALJ
to address claimant’s evidence of widely discrepant job-
number estimates. The panel joined other circuits in
encouraging the SSA to make the transition to a system that
more accurately reflects available jobs in the current
economy. Claimant’s job estimates differed substantially
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WHITE V. KIJAKAZI 3
from those of the VE. The claimant estimated—using
SkillTRAN Job Browser Pro and the same DOT codes the VE
had used—that there were 2,957 table worker, 0 assembler,
and 1,333 film tough-up inspector jobs in the national
economy. The discrepancy between the VE and the
claimant’s estimates was comparable to the discrepancy in
Buck. The panel concluded that remand was appropriate to
resolve the discrepancy.
COUNSEL
John D. Metsker (argued), Metsker Law Firm, San Francisco,
California, for Plaintiff-Appellant.
Elizabeth Firer (argued), Special Assistant United States
Attorney; Deborah Lee Stachel, Chief Counsel, Region IX;
Phillip A. Talbert, United States Attorney; Social Security
Administration, San Francisco, California; for Defendant-
Appellee.
4 WHITE V. KIJAKAZI
OPINION
W. FLETCHER, Circuit Judge:
Tyrone L. White appeals from the district court’s grant of
summary judgment to the Commissioner of Social Security,
affirming her denial of White’s claim for Supplemental
Security Income (“SSI”) benefits. Due to a bullet fragment
lodged in his spine, White’s left leg has atrophied. He suffers
from chronic pain, and he has difficulty walking, standing,
and sitting for extended periods of time. An Administrative
Law Judge (“ALJ”) denied White benefits based on the
testimony of a vocational expert (“VE”) that there were an
estimated 72,000 “Table worker,” 65,000 “Assembler,” and
32,000 “Film touch up inspector” jobs in the national
economy that White could perform. After the ALJ issued her
decision, White’s attorney submitted to the Social Security
Administration (“SSA”) Appeals Council different estimates
for those same jobs, allegedly using the same software
program as used by the VE. According to estimates
submitted by White, there were only 2,957 table worker jobs,
0 assembler jobs, and 1,333 film touch-up inspector jobs in
the national economy. The Appeals Council considered this
new evidence but denied White’s request for review.
We hold that under our decision in Buck v. Berryhill,
869 F.3d 1040, 1052 (9th Cir. 2017), remand is required to
allow the ALJ to address White’s evidence of vastly
discrepant job-number estimates. We therefore reverse the
district court’s decision granting summary judgment to the
Commissioner with directions that the case be remanded to
the agency for further proceedings consistent with this
opinion.
WHITE V. KIJAKAZI 5
I. Background
White was born in 1971. On October 9, 2009, he was
shot three times in what he described as a “random shooting.”
Fragments from one of the bullets remain lodged in White’s
S1 vertebra, projecting into his spinal canal. Due to the
presence of the bullet fragment, White’s left leg has
atrophied; he experiences significant chronic pain; and he has
difficulty sitting for more than 10–15 minutes at a time or
walking more than 50–60 yards. He walks with the aid of a
cane. He lives with his mother, who does the household
chores, including cooking, cleaning, laundry, and yard work.
In January 2010, White was awarded SSI disability
benefits. His benefits were later discontinued when he was
incarcerated in California. White’s prison medical records
document his continuing pain and his difficulty in walking
and standing. The prisons in which White was incarcerated
accommodated his disability by granting him lower-bunk and
lower-tier status, an extra mattress, and use of a cane. White
was assigned jobs that accommodated his disability but
allowed him to earn sentence credits—wiping off the dining
room tables and dusting off the top of lockers in his dorm.
He worked in the dining room for approximately forty
minutes a day, five days per week, and in the dorms for
twenty minutes a day, two days per week. He was prescribed
physical therapy, but it was not able to restore his mobility.
Upon his release from prison, White continued to obtain
medical treatment. His medical records document an acute,
“sharp and shooting” pain in White’s lower back radiating to
his left foot. His symptoms were reported as being
aggravated by ascending and descending stairs, lifting,
bending, standing, walking, and sitting.
6 WHITE V. KIJAKAZI
White submitted a new application for SSI disability
benefits on June 3, 2016. The SSA initially denied his
application eight days later. White appealed the denial, and
a consultative neurological examination was performed in
August 2016. The result of the examination was a functional
capacity assessment that White was limited to lifting ten
pounds frequently, twenty pounds occasionally, standing and
walking up to two hours per day, and sitting up to six hours
per day. White thereafter underwent an initial disability
determination medical exam, and was found not disabled.
White obtained legal representation and requested
reconsideration. Reconsideration was denied on January 12,
2017.
White requested a hearing before an ALJ. At the hearing,
the ALJ questioned White about his work history while
incarcerated, and about the effect of his injury on his daily
life and functioning.
The ALJ also questioned the VE, posing the following
hypothetical:
Let’s assume a hypothetical individual of the
claimant’s age, education and vocational
background who is able to lift and carry
10 pounds frequently and 20 pounds
occasionally. Standing and/or walking are
limited to two hours cumulatively during the
workday. Sitting is limited to six hours
cumulatively during the workday. Requires
the use of a cane for ambulating over
100 yards and is limited to walking on even
surfaces, has occasional, is able to
occasionally climb ramps and stairs, cannot
WHITE V. KIJAKAZI 7
climb ropes, ladders or scaffolds, is limited to
occasional balancing, stooping, kneeling,
crouching and crawling, cannot operate foot
controls with the left lower extremity.
The ALJ then asked, “[A]re there jobs . . . in the economy for
that individual?”
The VE responded with examples of three jobs that White
could perform. She provided the corresponding Dictionary
of Occupational Titles (“DOT”) codes, and estimated the
number of positions of each job in the national economy. She
testified:
[E]xamples would be [(1)] a table worker,
which is visual and inspection, DOT 739.687-
182, sedentary, unskilled, SVP 2, nationally
approximately 72,000 of these positions exist.
[(2)] An assembler, DOT 734.687-018,
sedentary, unskilled, SVP 2, nationally
approximately 65,000 of these positions exist.
[(3)] A film touch-up inspector with
electronic components, DOT 726.684-050,
sedentary, unskilled, SVP 2, nationally
approximately 32,000 of these positions exist.
The ALJ asked if there would be “[a]ny erosion” in these
job numbers if the individual required the ability to sit or
stand, alternating every 30 minutes, without time off task.
The VE answered: “No, since they’re not going to be off
task, no.” The VE testified further that if this hypothetical
individual were to need to be “off task more than 10% of the
time due to the need to stretch or tak[e] longer to sit, stand, or
8 WHITE V. KIJAKAZI
just other conditions” he would not be employable in “these
unskilled jobs.”
White’s attorney cross-examined the VE, asking her about
the source of the estimated job numbers. The VE testified
that the numbers came indirectly from the “Bureau of Labor
Statistics” and that she used an automated program,
“SkillTRAN,” to get the actual numbers. The ALJ
questioned the VE on her choice to use SkillTRAN. The VE
testified that she used SkillTRAN because “it has all the
DOTs, everything is broken down. I’ll have labor market
information per Bureau of Labor Statistics.” The VE further
testified that SkillTRAN is widely used by those in the
“vocational expert profession” and is considered “very
reliable.” White’s attorney did not offer evidence
contradicting the VE’s estimated job numbers.
The ALJ denied White’s application for SSI benefits. The
ALJ applied the five-step sequential evaluation process for
disability determinations required by SSA regulations.
20 C.F.R. § 416.920(a)(1). The ALJ found at the first step
that White had not engaged in substantial gainful activity
since his application date. Id. § 416.920(a)(4)(i). At the
second step, the ALJ found that White had a severe
impairment—a “retained bullet fragment in the left side of the
S1 vertebral body and projecting into the spinal canal, with
atrophy in the left lower extremity.” Id. § 416.920(a)(4)(ii).
At the third step, the ALJ found that White did not have an
impairment that meets or medically equals the severity of one
of the impairments listed in 20 C.F.R. pt. 404, subpt. P,
app. 1, so proceeded to step four. Id. § 416.920(a)(4)(iii). At
the fourth step, the ALJ determined that White had the
residual functional capacity to perform the full range of
sedentary work as defined in 20 C.F.R. § 416.967(a), except
WHITE V. KIJAKAZI 9
for several additional limitations, including the requirement
that he be able to sit or stand, alternating every 30 minutes,
without time off task. Id. § 416.920(a)(4)(iv).
At the fifth and final step, the ALJ determined that there
were jobs that exist in significant numbers in the national
economy that White could perform. Id. § 416.920(a)(4)(v).
In making this determination, the ALJ relied on the VE’s
testimony that White would be able to perform the
“representative occupations” of: (1) table worker (DOT code
739.687-182), (2) assembler (DOT code 734.687-018), and
(3) film touch up inspector, electronics (DOT code 726.684-
050). The ALJ also relied on the VE’s testimony to conclude
that table worker “has approximately 72,000 jobs in the
national economy,” that assembler “has approximately 65,000
jobs in the national economy,” and that film touch-up
inspector “has approximately 32,000 jobs in the national
economy.” The ALJ noted the VE’s “professional knowledge
and experience in job placement,” specified that the VE
“explained why SkillTRAN is reliable,” and, accordingly,
found the VE’s job numbers testimony to be reliable. Based
on the VE’s testimony, the ALJ concluded that White “is
capable of making a successful adjustment to other work that
exists in significant numbers in the national economy,” and
that a finding of “not disabled” was therefore appropriate.
White requested a review of the ALJ’s decision by the
Appeals Council and submitted additional evidence to the
Council. His evidence gave job estimates generated using
SkillTRAN’s “flagship program,” Job Browser Pro.
According to this evidence, there were only 2,957 table
worker jobs, 0 assembler jobs, and 1,333 film touch-up
inspector jobs in the national economy. White attached
10 WHITE V. KIJAKAZI
screenshots of SkillTRAN Job Browser Pro showing these
job numbers.
White provided to the Appeals Council descriptions of the
three jobs corresponding to the DOT codes provided by the
VE. A table worker “[e]xamines squares (tiles) of felt-based
linoleum material passing along a conveyor and replaces
missing substandard tiles.” An assembler “[i]nserts paper
label in back of celluloid or metal advertising buttons and
forces shaped stockpin under rim.” A film touch-up inspector
“[i]nspects and repairs circuitry image on photoresist film
(separate film or film laminated to fiberglass boards) used in
manufacture of printed circuit boards.” White wrote that,
given the specificity of these position descriptions, the job
numbers provided by the VE—tens of thousands of each job
in the national economy—were “clearly inflated,”
“untenable,” and “clearly inaccurate.”
In June 2019, the Appeals Council notified White that it
had denied his request for review of the ALJ’s decision. The
Appeals Council wrote: “You submitted reasons that you
disagree with the decision. We considered the reasons and
exhibited them on the enclosed Order of the Appeals Council.
We found that the reasons do not provide a basis for changing
the Administrative Law Judge’s decision.” The enclosed
Order indicated that White had submitted “Exhibit 18E” as
“additional evidence” and that the Appeals Council had made
that evidence “part of the record.” Exhibit 18E contained
White’s evidence concerning the job numbers for the three
jobs at issue. The Appeals Council did not describe or
discuss this evidence in its Notice or Order.
White timely filed a civil action in district court under
42 U.S.C. § 405(g). White provided to the district court the
WHITE V. KIJAKAZI 11
evidence he had submitted to the Appeals Council and
contended that the ALJ erred in relying on the VE’s
testimony when she determined that jobs suitable for White’s
limitations existed in significant numbers in the national
economy. The district court granted summary judgment to
the Commissioner. White timely appealed.
II. Standard of Review
We review de novo a decision of a district court
reviewing a determination of the SSA. Moore v. Comm’r of
the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). We
“independently determine whether the Commissioner’s
decision (1) is free of legal error and (2) is supported by
substantial evidence.” Smolen v. Chater, 80 F.3d 1273, 1279
(9th Cir. 1996). “Substantial evidence . . . means . . . ‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Biestek v. Berryhill,
139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
III. Discussion
A. Role of the Vocational Expert
Under the Social Security Act, a claimant is considered
“disabled” and entitled to disability benefits only if her
impairments preclude her both from conducting her past
relevant work and from engaging “in any other kind of
substantial gainful work which exists in the national
economy.” 42 U.S.C. § 423(d)(2)(A). Once a claimant
establishes at steps one through four of the sequential
evaluation process that she suffers from a severe impairment
that prevents her from doing any work she has done in the
12 WHITE V. KIJAKAZI
past, or that she has a severe impairment and has no relevant
past work, she has made out a prima facie case of a disability.
See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
The burden then shifts to the Commissioner at step five to
establish that the claimant can perform a “significant
number[]” of jobs in the national economy given the
claimant’s physical and mental limitations, age, education,
and work experience. 20 C.F.R. § 416.960(c)(2); Thomas v.
Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). The
Commissioner can carry this burden through the testimony of
a VE in cases where, as here, the Medical-Vocational
Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2, are
inconclusive as to a claimant’s disability. See Ford v. Saul,
950 F.3d 1141, 1149 (9th Cir. 2020); see also 20 C.F.R.
§§ 404.1566(e), 416.960(b), 416.966(e) (permitting the use of
VEs to aid in determining the specific occupations a claimant
can perform); Soc. Sec. Admin., Hearings, Appeals, and
Litigation Law Manual, § I-2-5-50 (2014) [hereinafter SSA
Manual] (“An ALJ may also determine a VE’s testimony is
necessary when the ALJ is determining whether the
claimant’s impairment(s) prevents the performance of any
other work and he or she cannot decide the case under any of
the tables in 20 CFR Part 404 Subpart P Appendix 2 . . . .”).
The SSA contracts with VEs to provide impartial
vocational testimony in hearings before ALJs. Biestek, 139 S.
Ct. at 1152; see also SSA Manual, supra, at § I-2-1-31(B)(1)
(describing the process by which SSA’s Office of Hearings
Operations may enter into a contract with a VE, who then is
added to the Regional Office’s roster). In determining
whether a vocational professional is qualified to serve as a
VE, the SSA considers the applicant’s “overall education and
experience” as well as the applicant’s “current knowledge”
of: (1) “[w]orking conditions and physical demands of
WHITE V. KIJAKAZI 13
various occupations;” (2) “[t]ransferability of skills;” (3) “the
existence and numbers of jobs at all exertional levels in the
national economy;” and (4) “placing adult workers, including
those with disabilities, into jobs.” SSA Manual, supra, at
§ I-2-1-31(B)(1); see also id. § I-2-5-48. While there are no
specific educational or certification requirements for VEs, a
majority of VEs have a master’s degree and are nationally
certified rehabilitation counselors. Michelle Aliff &
Katharine W. Jett, The White Paper: A Professional and
Ethical Mandate for Professional Vocational Expert Services
in SSA Determinations, 25 Rehab. Pro. 111, 113–14 (2017);
see also Chavez v. Berryhill, 895 F.3d 962, 964 (7th Cir.
2018) (“VEs tend to have master’s degrees in vocational
rehabilitation or psychology and often work in the field of job
placement.”).
An ALJ may ask a VE to provide testimony as to the
physical and mental demands of a claimant’s past relevant
work to assess whether the claimant is still able to perform
such past work. 20 C.F.R. § 416.960(b)(2). An ALJ may
also ask a VE to provide an opinion in response to a
hypothetical question as to whether a person with the mental
and physical limitations similar to the claimant could do past
relevant work or work that exists in significant numbers in the
national economy. See id.; id. § 416.966(e). If the VE
testifies that there are occupations that the hypothetical
claimant can perform given the assumed limitations, the ALJ
will typically ask the VE to provide examples of those
occupations and “[i]nformation about the numbers of jobs in
each occupation nationally.” Soc. Sec. Admin., Vocational
Experts Handbook 36 (June 2020).
VEs may use a wide range of data sources and
methodologies to generate job-number estimates. See
14 WHITE V. KIJAKAZI
Biestek, 139 S. Ct. at 1152–53 (describing different types of
data sources VEs may use); Goode v. Comm’r of Soc. Sec.,
966 F.3d 1277, 1284 (11th Cir. 2020) (describing several
methods of job-numbers estimation VEs use). ALJs must
inquire about, and VEs must explain, any inconsistencies
between their testimony and the DOT, a principal source of
occupational information for SSA. Social Security Ruling,
SSR 00-4p, 65 Fed. Reg. 75759, 75760 (Dec. 4, 2000); see
also Massachi v. Astrue, 486 F.3d 1149, 1152–53 (9th Cir.
2007); Swenson v. Sullivan, 876 F.2d 683, 688 (9th Cir. 1989)
(requiring ALJs to reject VE testimony that is inconsistent
with the Medical-Vocational Guidelines). Although a VE
may be cross-examined during the proceedings about the data
sources or methodologies underlying her job-number
estimates, there is no requirement that a VE disclose the
primary data underlying the estimates prior to, during, or after
the hearing. See SSA Manual, supra, at §§ I-2-5-48-60, I-2-
6-74 (outlining procedures for obtaining VE testimony); see
also Vocational Experts Handbook, supra, at 37
(recommending that VEs have available “any vocational
resource materials” that they are likely to rely on and be
prepared “to thoroughly explain” how they arrived at their
opinions, and specifying that “[i]n some cases, the ALJ may
ask you to provide relevant portions of materials”). Indeed,
the Supreme Court recently held that VE job-numbers
testimony may constitute substantial evidence supporting a
finding of no disability even if the VE refuses to disclose the
specific, non-public data sources on which the estimates were
based. Biestek, 139 S. Ct. at 1157.
Some courts, particularly the Seventh Circuit, have
criticized the SSA for continuing to rely on the DOT for
estimates of available jobs in the national economy. The
Seventh Circuit recently observed that the DOT “was last
WHITE V. KIJAKAZI 15
revised thirty years ago, leaving many of its job descriptions
outdated.” Ruenger v. Kijakazi, 23 F.4th 760, 761–62 (7th
Cir. 2022). In addition, as the Eleventh Circuit recently
noted, “[a]side from being three decades old, the DOT
presents other difficulties.” Goode, 966 F.3d at 1281.
Namely, the DOT does not provide statistical information for
its job codes; instead, VEs must imperfectly cross-reference
the codes with other occupational data sources. Id.; Ruenger,
23 F.4th at 762; Chavez, 895 F.3d at 965.
The SSA has been working on a transition to a new
Occupational Information System since 2008, with an
originally anticipated completion date of 2020. See Chavez,
895 F.3d at 965; Brace v. Saul, 970 F.3d 818, 820 (7th Cir.
2020); Purdy v. Berryhill, 887 F.3d 7, 14 n.10 (1st Cir. 2018).
However, the date has slipped, and the transition has not yet
occurred. See Soc. Sec. Admin., Occupational Information
System Project, https://www.ssa.gov/disabilityresearch/occ
upational_info_systems.html (last visited July 1, 2022). We
join our sister circuits in encouraging the SSA to make the
transition to a system that more accurately reflects available
jobs in the current economy.
Despite the outdated DOT system upon which the SSA
allows VEs to rely, we have characterized uncontradicted VE
job-numbers testimony as “inherently reliable” and
“ordinarily sufficient by itself to support an ALJ’s step-five
finding.” Ford, 950 F.3d at 1160 (first quoting Buck,
869 F.3d at 1051); see also Kilpatrick v. Kijakazi, 35 F.4th
1187, 1192–93 (9th Cir. 2022). However, a VE may “offer
testimony that is so feeble, or contradicted, that it would fail
to clear the substantial-evidence bar.” Biestek, 139 S. Ct.
at 1155–56. The substantial evidence inquiry for VE
testimony must proceed on a “case-by-case” basis, taking
16 WHITE V. KIJAKAZI
“into account all features of vocational expert’s testimony, as
well as the rest of the administrative record.” Id. at 1157.
B. Presentation of New Evidence to the Appeals Council
Social security disability claimants must raise challenges
to the accuracy of a VE’s job-number estimates “at some
point during administrative proceedings to preserve the
challenge on appeal in federal district court.” Shaibi v.
Berryhill, 883 F.3d 1102, 1103 (9th Cir. 2017); see also
Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999)
(holding that a claimant’s failure to raise an issue “at both her
hearing before the ALJ and the Appeals Council” constitutes
forfeiture). The Appeals Council is the final level of SSA’s
administrative review. The SSA’s decision is not final until
the Appeals Council denies a request for review, or, if it
accepts a case for review, until it issues its own findings. See
20 C.F.R. §§ 404.955, 404.981; see also Bass v. Soc. Sec.
Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam).
SSA regulations permit a claimant to submit additional
evidence to the Appeals Council if the claimant shows good
cause for not having submitted it earlier. 20 C.F.R.
§ 404.970(b); see Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1162–63 (9th Cir. 2012) (holding that
evidence submitted for the first time to the Appeals Council
becomes part of the administrative record for the purposes of
judicial review). When good cause is shown, regulations
provide that the Appeals Council will review a case based on
additional evidence submitted to the Council for the first time
if the evidence is “material,” it relates to a time period on or
before the ALJ’s decision, and “there is a reasonable
probability that the additional evidence would change the
outcome of the decision.” 20 C.F.R. § 404.970(a)(5).
WHITE V. KIJAKAZI 17
C. Buck v. Berryhill
In Buck v. Berryhill, 869 F.3d 1040 (9th Cir. 2017), the
VE and the claimant introduced evidence of strikingly
different estimates for the same jobs. The VE testified that
the claimant, Gavin L. Buck, could work in several different
jobs, including bottling-line attendant, bottle packer, and
conveyor-belt maker. Id. at 1047. The VE estimated that
there were 600,000 bottling-line attendant jobs, 8,800 bottle-
packer jobs, and 235,000 conveyor-belt maker jobs in the
national economy. Id. Using the same software program as
the VE, Buck’s attorneys estimated that there were, in fact,
only 231 bottling-line attendant jobs, 2,039 bottle-packer
jobs, and 26 conveyor-belt maker jobs nationally. Id. The
ALJ curtailed Buck’s cross-examination of the VE at the
hearing, but assured Buck that he could submit his objections
post-hearing. Id. Without addressing Buck’s post-hearing
submission, the ALJ denied disability benefits. Id. The ALJ
found at step five that Buck could work in the jobs to which
the VE had testified, and that those jobs were present in
significant numbers in the national economy. Id. The
Appeals Council denied Buck’s request for review. Id.
at 1048. The district court granted summary judgment to the
Commissioner. Id.We reversed, holding that “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. at 1052. We explained that in failing to address
that discrepancy, the ALJ had violated the general duty to
clarify and develop the record. Id. We concluded, “This
inconsistency in the record must be addressed by the ALJ on
remand.” Id. We recently applied Buck and held that an ALJ
need only resolve job-number inconsistencies if the
18 WHITE V. KIJAKAZI
“competing job numbers . . . constitute significant probative
evidence.” Kilpatrick, 35 F.4th at 1194. We consider
whether there is “support for [a claimant’s] counsel’s
approach” in generating job-number estimates in determining
whether new evidence is significant and probative. Id.
D. Obligation of the Agency in this Case
In the case before us, the Appeals Council wrote that it
had “consider[ed] the reasons” submitted by White in
connection with his request for review, and that it had made
White’s additional evidence “part of the record.” However,
the Appeals Council declined to remand White’s case to the
ALJ for further consideration of this evidence.
A disability claimant has the right to submit evidence to
the Appeals Council that was not submitted to the ALJ,
provided there is “good cause” for not having submitted the
evidence earlier. 20 C.F.R. § 404.970(b). We interpret the
statement in the Appeals Council’s Order that it had
“consider[ed]” White’s reasons and had made his additional
evidence “part of the record” as indicating that White had
shown “good cause” under § 404.970(b) in not having
introduced it in the hearing before the ALJ. We have
previously recognized that “a claimant will rarely, if ever, be
in a position to anticipate the particular occupations a VE
might list and the corresponding job numbers to which a VE
might testify at a hearing.” Shaibi, 883 F.3d at 1110.
If the Appeals Council had credited White’s estimates that
there were only a total of 4,290 jobs (counting all three jobs)
in the national economy that he could perform, there is a
reasonable probability that the outcome of his proceeding
may have been different. See Gutierrez v. Comm’r of Soc.
WHITE V. KIJAKAZI 19
Sec., 740 F.3d 519, 528–29 (9th Cir. 2014) (holding that
25,000 jobs nationally is a significant number, but noting that
it was a “close call”); see also Beltran v. Astrue, 700 F.3d
386, 390 (9th Cir. 2012) (holding that 1,680 jobs nationally
was not significant). Furthermore, White’s conflicting
evidence was “significant” and “probative.” Kilpatrick,
35 F.4th at 1193. White’s evidence was produced using a
data source and methodology frequently relied on by the
SSA. Id. at 1194; see also Purdy, 887 F.3d at 14
(“SkillTRAN’s software has been recognized . . . to be widely
relied upon by vocational experts in estimating the number of
relevant jobs in the national economy.”); Chavez, 895 F.3d
at 966–67, 970–71 (holding that an ALJ’s decision was not
supported by substantial evidence where the ALJ failed to
address discrepancy between job estimates obtained via the
equal distribution method and job numbers obtained from Job
Browser Pro). Indeed, according to White, his job estimates
were produced using the same methodology as that used by
the VE.
In sum, White’s job estimates differed substantially from
those of the VE. White estimated—using SkillTRAN Job
Browser Pro and the same DOT codes the VE had used—that
there were 2,957 table worker, 0 assembler, and 1,333 film
touch-up inspector jobs in the national economy. The VE had
testified that there were 72,000, 65,000, and 32,000 jobs,
respectively, in these same occupations. The discrepancy
between these estimates is comparable to the discrepancy in
Buck. See 869 F.3d at 1047.
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. Under SSA regulations, a claimant
20 WHITE V. KIJAKAZI
has a right to submit additional evidence to the Appeals
Council, which the agency may choose to make part of the
administrative record where it finds that certain conditions
are met, as it appears to have done here. See 20 C.F.R.
§ 404.970(b). Applying Buck, we hold that remand is
appropriate to allow the ALJ to address the evidence and to
resolve the inconsistency between the job-number estimates
provided by White and by the VE.
Conclusion
The evidence White submitted to the Appeals Council
created an inconsistency in the record that the agency had an
obligation under Buck to address and resolve. We reverse the
decision of the district court with directions that the case be
remanded to the agency for further proceedings consistent
with this opinion.
REVERSED and REMANDED.