James Wischmann v. Kilolo Kijakazi ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES BOYD WISCHMANN, No. 21-35914
Plaintiff-Appellant, D.C. No.
2:20-cv-01673-
v. MAT
KILOLO KIJAKAZI, Acting
Commissioner of Social Security, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Argued and Submitted November 8, 2022
Seattle, Washington
Filed May 17, 2023
Before: Sandra S. Ikuta and Daniel P. Collins, Circuit
Judges, and Sidney A. Fitzwater, * District Judge.
Opinion by Judge Ikuta
*
The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
2 WISCHMANN V. KIJAKAZI
SUMMARY **
Social Security
The panel affirmed the district court’s decision
upholding the Commissioner of Social Security’s denial of
James Wischmann’s application for benefits under the
Social Security Act.
Relying on the vocational expert (“VE”)’s testimony, the
administrative law judge (“ALJ”) found that there were a
significant number of jobs in the national economy that
Wischmann could perform, and, therefore, Wischmann was
not disabled. Wischmann’s attorney sent a letter to the
Appeals Council asking it to review the ALJ’s finding that
there were a significant number of jobs in the national
economy that Wischmann could perform. The Appeals
Council made the attorney’s letter and a six-page attachment
part of the record, and denied Wischmann’s request for
review of the ALJ’s disability determination because it
“found no reason under [the] rules to review the
Administrative Law Judge’s decision.”
On appeal, Wischmann challenged only the ALJ’s
conclusion that there were a significant number of jobs in the
national economy that a person with Wischmann’s
limitations, age, education, and experience could
perform. The panel held that to determine whether the ALJ
had a duty to address a conflict in job-number evidence (and
failed to discharge that duty), it considers on a case-by-case
basis whether new evidence submitted by a claimant is
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WISCHMANN V. KIJAKAZI 3
“meritless or immaterial” or has “significant probative
value.”
Because Wischmann did not present his job-number
evidence to the ALJ during or after the hearing, the ALJ did
not have any occasion to address the purported inconsistency
between the VE’s estimates and Wischmann’s contrary
estimates. The panel considered whether Wischmann’s
estimates were both significant and probative. The panel
held that the letter by Wischmann’s counsel and the six
pages of printouts together provided no basis to conclude
that these results qualified as significant and probative
evidence. The letter provided no information about how the
job numbers were produced, other than the name of the
software program used. Nor do the six pages of attached
printout support the letter’s assertions. The panel held that
because the letter and attachments were not probative
evidence, they did not give rise to the sort of inconsistency
in the evidence that an ALJ was required to
resolve. Therefore, the panel concluded that there was no
need to remand. The panel rejected Wischmann’s argument
that his assertion—that he (or his attorney) used Job Browser
Pro to produce contradictory estimates of job numbers that
were significantly lower than the VE’s estimate—was
sufficient to require remand.
4 WISCHMANN V. KIJAKAZI
COUNSEL
Paul M. Warren (argued) and Kevin Kerr, Kerr Robichaux
& Carroll, Portland, Oregon, for Plaintiff-Appellant.
Shata L. Stucky (argued), Assistant Regional Counsel;
Nicole Jabaily, Acting Regional Chief Counsel, Seattle
Region X; Social Security Administration, Office of the
General Counsel; Seattle, Washington; Kerry Jane Keefe,
Assistant United States Attorney; Nicholas W. Brown,
United States Attorney; Office of the United States Attorney;
Seattle, Washington; for Defendant-Appellee.
OPINION
IKUTA, Circuit Judge:
This case requires us to decide whether an
Administrative Law Judge (ALJ) must reconcile a purported
inconsistency between testimony of a vocational expert (VE)
as to the number of jobs available in the national economy
that a claimant can perform and the claimant’s assertedly
contrary job-number estimates submitted to the Appeals
Council after the ALJ’s determination and made part of the
administrative record. Where, as here, the new evidence is
not probative, the ALJ has no duty to resolve the
inconsistency, and we must uphold the agency’s final
decision. We affirm.
WISCHMANN V. KIJAKAZI 5
I
A
James Wischmann applied for disability insurance
benefits and supplemental security income in November
2018, alleging that he was disabled since January 1, 2018
due to degenerative disc disease, radiculopathy, and
spondylosis. The ALJ determined that Wischmann’s
impairments left him with the residual functional capacity to
perform light work with certain limitations. Although
Wischmann could not perform his past relevant work, the
ALJ considered the testimony of a VE, who identified other
work existing in significant numbers in the national
economy that a person with Wischmann’s limitations could
perform. The VE identified three main occupations: bakery
helper (59,000 positions nationwide), counter clerk (25,000
positions nationwide), and agricultural sorter (10,600
positions nationwide).
At the ALJ hearing in January 2020, Wischmann’s
counsel asked the VE how he calculated the numbers for two
of those jobs and the data source used for those calculations.
The VE stated “[t]he software that we use is SkillTRAN
Browser—Job Browser Pro,” which is a computer software
that is “widely relied upon by vocational experts in
estimating the number of relevant jobs available in the
national economy.” Purdy v. Berryhill, 887 F.3d 7, 14 (1st
Cir. 2018). Relying on the VE’s testimony, the ALJ found
that there was a significant number of jobs in the national
economy that Wischmann could perform, and, therefore,
Wischmann was not disabled.
6 WISCHMANN V. KIJAKAZI
B
A VE’s estimate of the number of jobs available in the
national economy is informed by the VE’s experience and
expertise, and may be based upon “not only publicly
available sources but also ‘information obtained directly
from employers’ and data otherwise developed from [the
VE’s] own ‘experience in job placement or career
counseling.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1152–53
(2019) (citing SSR 00-4p, 65 Fed. Reg. 75759, 75760 (Dec.
4, 2000)). “[W]e have characterized uncontradicted VE job-
numbers testimony as inherently reliable and ordinarily
sufficient by itself to support an ALJ’s step-five finding.”
White v. Kijakazi, 44 F.4th 828, 835 (9th Cir. 2022) (citation
and quotation marks omitted); see also Ford v. Saul, 950
F.3d 1141, 1159 (9th Cir. 2020) (stating that “where the
[vocational] expert is qualified and presents cogent
testimony that does not conflict with other evidence in the
record, the expert’s testimony” is substantial evidence to
support the ALJ’s step-five finding (citation and quotation
marks omitted)).
Although criticized as having many outdated job
descriptions, see White, 44 F.4th at 835, the Dictionary of
Occupational Titles (DOT) is typically the starting point for
VEs to identify the occupations relevant for each claimant’s
residual functional capacities, see McClesky v. Astrue, 606
F.3d 351, 354 (7th Cir. 2010) (describing DOT as “the Bible
of vocational experts”); see also 20 C.F.R.
§§ 404.1566(d)(1), 416.966(d)(1). “The DOT groups jobs
into ‘occupations’ based on their similarities and assigns
each occupation a code number.” Goode v. Comm’r of Soc.
Sec., 966 F.3d 1277, 1281 (11th Cir. 2020). But the DOT
does “not provide statistical information about the number
of jobs available in the national economy” for each
WISCHMANN V. KIJAKAZI 7
occupation code. Id.; see also Brault v. Soc. Sec. Admin.,
Comm’r, 683 F.3d 443, 446 (2d Cir. 2012) (“The DOT,
however, just defines jobs. It does not report how many such
jobs are available in the economy.”).
To obtain information about the numbers of jobs, VEs
look to other sources, such as the Bureau of Labor Statistics
Occupational Employment Survey (OES) or the
Occupational Employment Quarterly (OEQ), compiled by a
private organization. See Ruenger v. Kijakazi, 23 F.4th 760,
762 (7th Cir. 2022); Goode, 966 F.3d at 1281; see also
Brault, 683 F.3d at 446. Both the OES and OEQ assign job-
number data to a particular occupation based on the Bureau
of Labor Statistics’ Standard Occupational Classification
(SOC) codes. To further complicate matters, the criteria for
SOC occupation codes are different than the DOT
occupation codes. “The SOC system groups together
detailed occupations with similar job duties” in a single
code, such that “a single SOC group may contain multiple
DOT occupations.” Goode, 966 F.3d at 1281. For example,
ten DOT codes could be correlated to a single SOC code,
which reports 100,000 total jobs. See Brault, 683 F.3d at447 n.4. But that “gives no information at all about how
many positions each of the ten DOT codes contributed to
that total.” Id. (emphasis added). That is especially
problematic “if DOT titles with different exertion or skill
levels map to the same SOC code,” such that a claimant can
perform some but not all of the jobs reported as available for
the SOC occupation code. Id. As a result, employment data
corresponding to a single SOC occupation code does not
correspond to a single DOT occupation code.
The lack of correspondence between DOT occupation
codes and SOC employment data requires VEs to determine
how many of the jobs available for an SOC code match the
8 WISCHMANN V. KIJAKAZI
claimant’s specific DOT code or codes. See Goode, 966
F.3d at 1283; Brault, 683 F.3d at 446. Proprietary software
programs have attempted to bridge this gap by matching
various employment data sources’ job types to the claimant’s
DOT code and then estimating the number of available jobs
for the DOT occupation code. SkillTRAN’s Job Browser
Pro is one such program. 1 See White, 44 F.4th at 837
(describing Job Browser Pro as a “methodology frequently
relied on by the [Administration]”).
C
In March 2020, Wischmann’s attorney sent a letter to the
Appeals Council asking it to review the ALJ’s finding that
there were a significant number of jobs in the national
economy that Wischmann could perform. The attorney
claimed the finding was not supported by substantial
evidence because “the ALJ improperly found that there were
jobs that exist in significant numbers in the national
economy that Mr. Wischmann can perform.” After noting
that the VE stated he used Job Browser Pro and DOT
specific numbers to determine “how many positions there
are nationally,” the attorney stated that “using Job Browser
Pro the data shows that for bakery helper there are 45
positions nationally, for counter clerk there are [1],527
positions nationally, and for agricultural sorter there are
1
For an explanation of SkillTRAN’s methodology, see Defending Your
Use of Job Browser Pro Methodology, SkillTRAN,
SkillTRAN.com/index.php/support-area/documentation/223-jbp-
defense (last accessed Nov. 9, 2022); Peter J. Lemoine, Crisis of
Confidence: The Inadequacies of Vocational Evidence Presented at
Social Security Disability Hearings, Part II 16, 18–19, Social Security
Forum (Sept. 2012) (describing Job Browser Pro’s methodology).
WISCHMANN V. KIJAKAZI 9
4,533 jobs nationally.” 2 That amounted to a total of “6,105
[jobs] available that Mr. Wischmann would be capable of
performing,” which, the letter contended, is “not enough to
be significant.”
Six pages of computer printout were attached to this
letter. The first page states “2018 Employment Estimate for:
524.687-022 Bakery Worker, Conveyor Line.” At the
bottom of the page, there is a column labeled “TOTAL
Industry Employment Estimate.” Under that column,
appears the entry “U.S. National.” The next column is
labeled “OES Group” and includes the entry “588.” The
third column is labeled “Self-Employed” and has one entry,
“0.” The fourth column is labeled “DOT Code” and has the
number “45.” The final column is labeled “Selt:gulgy-ed”
and has the entry “0.”
The third page states “2018 Employment Estimate for:
249.366-010 Counter Clerk.” There is a column labeled
“TOTAL Industry Employment Estimate,” under which
appears the entry “U.S. National.” To the right appears a
column labeled “QSS-Q.LQ.up” which includes no entry.
The next column is labeled “Self-Employed” and includes
the entry “14.” The fourth column is labeled “DOT Code,”
and lists no entry. And the final column is labeled
“Selt:gulgy-ed” and has the entry “14.”
The fifth and sixth pages state “2018 Employment
Estimate for: 529.687-186 Sorter, Agricultural Produce.”
The first column is labeled “TOTAL Industry Employment
Estimate.” Under that column, appears “U.S. National.”
2
The letter states “for counter clerk there are I , 527 positions
nationally,” which we interpret as meaning 1,527 in light of the letter’s
later statement that the total number of positions is “6, 1 05.”
10 WISCHMANN V. KIJAKAZI
The next column is labeled “QSS-Q.LQ.up” and includes the
entry “3,065.” The third column is labeled “Self-Employed”
and contains the entry “25.” The fourth column is labeled
“DOT Code” and has no entry. And the fifth column is
labeled “Selt:gulgy-ed” and includes the entry “12.”
The letter does not reference these six pages, and the
pages themselves do not indicate their source. Nor do the
pages indicate the process by which the data were generated,
or how the information on the pages supports the attorney’s
claim regarding job numbers in the national economy.
Further, the letter’s statement of estimated job numbers does
not correspond with the numbers in the printouts. The letter
states that there are 45 positions for bakery work, 1,527
positions for counter clerk, and 4,533 positions for
agricultural sorter. While the page labeled “Bakery Worker”
includes the number 45 (under the column labeled DOT
code), the remaining attachments do not include the numbers
1,527 or 4,533.
The Appeals Council made the attorney’s letter and the
six-page attachment part of the record. But the Appeals
Council denied Wischmann’s request for review of the
ALJ’s disability determination stating that “[w]e found no
reason under our rules to review the Administrative Law
Judge’s decision.” Because the Appeals Council denied
review, the ALJ’s decision serves as the Commissioner’s
final agency action. Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161–62 (9th Cir. 2012).
Wischman challenged the final decision in the district
court, raising only his claim that the ALJ improperly
accepted the VE’s testimony regarding the number of jobs in
the national economy. The district court upheld the ALJ’s
decision, and Wischman timely appealed.
WISCHMANN V. KIJAKAZI 11
We have jurisdiction to review the district court’s
decision upholding the Commissioner’s denial of
Wischmann’s application. See 28 U.S.C. § 1291; Gardner
v. Berryhill, 856 F.3d 652, 656 (9th Cir. 2017). We review
that decision de novo and must determine whether the ALJ’s
ruling is free of legal error and its findings of fact are
supported by substantial evidence. Brewes, 682 F.3d at1161–62. Under that standard, “[w]e must uphold the ALJ’s
decision where the evidence is susceptible to more than one
rational interpretation.” Andrews v. Shalala, 53 F.3d 1035,
1039–40 (9th Cir. 1995). Because the Appeals Council
accepted Wischmann’s new evidence, it became “part of the
administrative record, which the district court [and we] must
consider.” Brewes, 682 F.3d at 1163.
II
On appeal, Wischmann challenges only the ALJ’s
conclusion that there are a significant number of jobs in the
national economy that a person with Wischmann’s
limitations, age, education, and experience can perform.
This is the final step in the five-step sequential evaluation
process for determining whether an individual is disabled.
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Thomas v.
Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). 3
3
At steps one through four, the ALJ must determine (1) “if the claimant
is presently engaged in a ‘substantial gainful activity,’” Ford v. Saul, 950
F.3d 1141, 1148 (9th Cir. 2020) (citing 20 C.F.R. § 404.1520(a)(4)(i));
(2) “whether the claimant’s impairments or combination of impairments
is ‘severe,’” id. (citing 20 C.F.R. § 404.1520(a)(4)(ii)); (3) whether the
claimant’s impairments or combination of impairments meets or equals
the severity of one listed in the Listing of Impairments, see id. (citing 20
C.F.R. § 404.1520(a)(4)(iii)); and (4) whether the claimant is capable of
performing past relevant work, see id. at 1149 (citing 20 C.F.R.
12 WISCHMANN V. KIJAKAZI
The ALJ has a general duty to resolve inconsistencies in
the evidence, which may require obtaining additional
evidence. See 20 C.F.R. § 404.1520b(b) (setting out the
steps the agency may take when “the evidence in [the
claimant’s] case record is . . . inconsistent”); 20 C.F.R.
§ 416.920b(b) (same). This duty applies “[t]hroughout the
five-step evaluation.” Ford, 950 F.3d at 1149. For example,
under current rules, if there is a conflict between
occupational evidence provided by the VE and information
in the DOT, the ALJ may not rely on the VE’s “evidence to
support a determination or decision that the individual is or
is not disabled” unless the ALJ explains “how he or she
resolved the conflict.” SSR 00-4p, 65 Fed. Reg. at 75760;
see also Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir.
2018) (“[A]n ALJ is required to investigate and resolve any
apparent conflict between the VE’s testimony and the DOT,
regardless of whether a claimant raises the conflict before
the agency.”); Gutierrez v. Colvin, 844 F.3d 804, 807 (9th
Cir. 2016) (“If the [VE’s] opinion that the applicant is able
to work conflicts with, or seems to conflict with, the
requirements listed in the [DOT], then the ALJ must ask the
expert to reconcile the conflict before relying on the expert
to decide if the claimant is disabled.”); Zavalin v. Colvin,
778 F.3d 842, 846 (9th Cir. 2015) (“The ALJ must ask the
[VE] to explain the conflict [between the VE’s testimony
and the DOT] and then determine whether the [VE’s]
explanation for the conflict is reasonable before relying on
the [VE’s] testimony to reach a disability determination.”
(citation and quotation marks omitted)).
§ 404.1420(f)). Wischmann does not challenge the ALJ’s decision
regarding these steps.
WISCHMANN V. KIJAKAZI 13
Although the agency has not directly addressed the
ALJ’s responsibility to resolve a conflict between the VE’s
job-number estimates and the claimant’s job-number
estimates, we have held that—as with any other
inconsistency in record evidence—the ALJ may have a duty
to address such a conflict. See Buck v. Berryhill, 869 F.3d
1040, 1051–52 (9th Cir. 2017) (collecting cases); White, 44
F.4th at 836–37. That duty arises only where the purportedly
inconsistent evidence is both significant and probative, as
opposed to “meritless or immaterial.” Kilpatrick v. Kijakazi,
35 F.4th 1187, 1193–94 (9th Cir. 2022). After all, an ALJ
“need not discuss all evidence presented to her. Rather, [an
ALJ] must explain why ‘significant probative evidence has
been rejected.’” Vincent ex rel. Vincent v. Heckler, 739 F.2d
1393, 1394–95 (9th Cir. 1984) (citation omitted).
We have considered both the probative value and
significance of conflicting job-number estimates in several
cases. In Kilpatrick, a claimant challenged the ALJ’s
reliance on a VE’s testimony by submitting a letter to the
ALJ which stated contrary estimates of jobs available in the
national economy derived by the claimant’s attorney. 35
F.4th at 1190–91, 1194. In that case, “there [was] no basis
to conclude that these results qualified as significant
probative evidence” because the claimant’s attorney “had no
identified expertise in calculating job figures in the national
economy” and “there [were] obvious reasons to question [the
attorney’s] methodology,” given that the data used “was
roughly seven years old at the time” and the attorney used an
“equal distribution method” that required improbable
assumptions. Id. at 1194. Because the “estimated job
numbers lacked a sufficient foundation,” we declined to
consider the degree of the conflict between the competing
14 WISCHMANN V. KIJAKAZI
job numbers and upheld the ALJ’s conclusion. Id. at 1194–
95.
In cases where the conflicting job-number estimates
were accepted as probative, we turned to the question
whether the new evidence was significant, which in the
context of job-number estimates is a measure of the
discrepancy between the VE’s estimates (upon which the
ALJ relied to render the step-five finding) and the claimant’s
estimates. See Buck, 869 F.3d 1040; White, 44 F.4th 828. In
Buck, the ALJ had “curtailed Buck’s cross-examination of
the VE” and then ignored his submission of competing
numbers. 869 F.3d at 1047. We “presum[ed]” that Buck’s
calculations were probative and held that the “vast
discrepancy between the VE’s” estimate of 843,800 jobs and
the claimant’s estimate of 2,296 jobs was “simply too
striking to be ignored,” such that the “inconsistency in the
record [had to] be addressed by the ALJ on remand.” Id. at
1047, 1052.
We reached a similar conclusion in White, 44 F.4th 828.
In that case, a VE testified that she used an “automated
program, ‘SkillTRAN’” to determine that the claimant
would be able to perform the occupations of table worker,
assembler, and film touch-up inspector, which had
approximately 72,000; 65,000; and 32,000 jobs,
respectively, in the national economy. Id. at 831. Based on
this testimony, the ALJ concluded that the claimant was not
disabled. Id. at 832. The claimant requested a review of this
decision with the Appeals Council and submitted “job
estimates generated using SkillTRAN’s ‘flagship program,’
Job Browser Pro,” which showed “there were only 2,957
table worker jobs, 0 assembler jobs, and 1,333 film touch-up
inspector jobs in the national economy.” Id. The Appeals
Council declined review. Id. at 833.
WISCHMANN V. KIJAKAZI 15
On appeal, we then considered whether the claimant’s
job numbers had probative value and concluded (without
analysis) that the claimant’s “conflicting evidence” was
“produced using the same methodology as that used by the
VE” and was “‘significant’ and ‘probative.’” Id. at 837
(citation omitted). Given the large discrepancy between the
VE’s testimony and the claimant’s new evidence, we held
that remand to the ALJ was appropriate. See id.
In sum, to determine whether the ALJ had a duty to
address a conflict in job-number evidence (and failed to
discharge that duty), we consider on a case-by-case basis
whether new evidence submitted by a claimant is “meritless
or immaterial” or has “significant probative” value.
Kilpatrick, 35 F.4th at 1193. If the new evidence is
significant and probative, we must remand to the ALJ to
address the inconsistency in the record evidence. See White,
44 F.4th at 837; Buck, 869 F.3d at 1052. Otherwise, if the
claimant’s new evidence is either not probative or not
significant, we must uphold the ALJ’s determination. See
Kilpatrick, 35 F.4th at 1195.
III
We now turn to Wischmann’s challenge to the ALJ’s
conclusion, based on the VE’s testimony, that there were a
significant number of jobs in the national economy that
Wischmann could perform. Wischmann preserved his
challenge to the VE’s job-number estimates by asking the
VE during the hearing how he had calculated the estimates
for two of the jobs and the data source used for his estimates
and by presenting contrary job-number estimates to the
Appeals Council, which the Appeals Council considered and
made part of the record. See Shaibi, 883 F.3d at 1110; White,
44 F.4th at 831–32, 837.
16 WISCHMANN V. KIJAKAZI
Because Wischmann did not present his evidence to the
ALJ during or after the hearing, the ALJ did not have any
occasion to address the purported inconsistency between the
VE’s estimates and Wischmann’s contrary estimates. We
therefore must determine whether Wischmann’s estimates
were both significant and probative, which would require a
remand to the ALJ to reconsider his step-five finding that
there were a significant number of jobs in the national
economy that Wischmann could perform (based on the VE’s
testimony). See White, 44 F.4th at 836–37.
We begin by considering whether the evidence
submitted by Wischmann is probative. The letter by
Wischmann’s counsel and the six pages of printouts together
provide “no basis to conclude that these results qualified as
significant probative evidence.” Kilpatrick, 35 F.4th at
1194. The letter does not show that the data enclosed “were
produced using the same methodology as that used by the
VE.” White, 44 F.4th at 837. The letter states only that Job
Browser Pro produced a lower number of positions available
nationally for baker, counter clerk, and agricultural sorter.
But the letter provides no information about how the job
numbers were produced, other than the name of the software
program used. A software program, however, is merely a
tool that must be used appropriately to produce reliable
results. Given that SkillTRAN’s Job Browser Pro software
is meant to assist a VE in performing a complex matching
exercise of various sources of information from official and
private sources, see supra at 6–8, experience in using the
program and interpreting the output would ordinarily be
necessary to produce probative results. But the letter does
not state who produced the outputs—whether a VE with
expertise in developing job numbers or the attorney himself,
who has “no identified expertise in calculating job figures in
WISCHMANN V. KIJAKAZI 17
the national economy.” Kilpatrick, 35 F.4th at 1194. Nor
does the letter establish that the attorney replicated a
methodology that was set forth by the VE at the hearing. In
addition, the letter provides no information about what
queries were entered into the computer program, what
variables were changed, or what filters were applied to the
data. Nor does the letter state which version of the program
was used, so we do not know whether the information used
by the program was current or out of date. See id. (noting
that where the claimant’s attorney used “data that was
roughly seven years old at the time” to calculate the job-
number estimates, “there [were] obvious reasons to question
[the] methodology”).
Nor do the six pages of attached printout support the
letter’s assertions. Neither the letter nor the pages
themselves state that the printout data was produced with Job
Browser Pro. The raw data set out on these pages, see supra
at 9–10, is not comprehensible to a lay person, and
Wischmann does not provide the interpretation necessary to
make the pages meaningful to a court. Cf. Decker v.
Berryhill, 856 F.3d 659, 663–65 (9th Cir. 2017) (stating that
a district court was not required to interpret raw laboratory
data to support the claimant’s argument, in the absence of
any interpretation that “would have made them more
meaningful” to the court). And because “an ALJ need not
discuss evidence” from a lay witness that the “lay witness is
‘not competent’ to provide,” the uninterpreted data is not
probative. Kilpatrick, 35 F.4th at 1194 (citing Tobeler v.
Colvin, 749 F.3d 830, 834 (9th Cir. 2014)). Moreover, there
are “obvious reasons to question” the reliability of the
attached computer printouts. Id. Among other things, the
letter’s statement of estimated job numbers does not fully
correspond to the numbers in the printouts. See supra at 10.
18 WISCHMANN V. KIJAKAZI
In short, because the letter and attachments are not
probative evidence, they do not give rise to the sort of
inconsistency in the evidence that an ALJ is required to
resolve. See Kilpatrick, 35 F.4th at 1193–94. Therefore,
there is no need to remand. 4
In opposing this conclusion, Wischmann argues that his
assertion that he (or his attorney) used Job Browser Pro to
produce contradictory estimates of job numbers that were
significantly lower than the VE’s estimate is sufficient to
require remand. We disagree. An ALJ has no duty to
consider evidence that is “meritless or immaterial.” Id. at
1193. Thus, the bare assertion by Wischmann’s attorney
coupled with the uninterpreted raw data do not give rise to a
material inconsistency that the ALJ is required to resolve.
By contrast, in White, we concluded that the claimant had
shown that “his job estimates were produced using the same
methodology as that used by the VE” and were “‘significant’
and ‘probative.’” 44 F.3d at 837 (citation omitted). And in
Buck, we were willing to “presum[e],” for purposes of our
decision, that the claimant’s competing numbers were
probative when the ALJ had “curtailed [the claimant’s]
cross-examination” on that very subject and then simply
disregarded the claimant’s numbers without explanation.
869 F.3d at 1047, 1052. Contrary to Wischmann’s
argument, the ALJ does not have an obligation to address the
claimant’s evidence of job numbers in the national economy,
unless that evidence is significant and probative. See
4
Because we decide on this ground, we need not consider whether the
disparity between the VE and Wischmann’s job-number estimates is
significant. See Kilpatrick, 35 F.4th at 1195 (taking this approach).
WISCHMANN V. KIJAKAZI 19
Vincent, 739 F.2d at 1394–95 (recognizing that an ALJ
“need not discuss all evidence presented to her”).
AFFIRMED.