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.