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). 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).

Wischmann applied for disability insurance benefits and supplemental security income.  The ALJ denied his application because there were a substantial number of jobs in the national economy he could perform.  Wischmann sought review by the Appeals Council and submitted evidence through counsel that showed lower job number estimates than those presented by the vocational expert.  The Appeals Council denied review.  Wischmann subsequently petitioned the district court, which upheld the ALJ’s decision.  On appeal, Wischmann argued that the ALJ erred in concluding that there were sufficient jobs he could perform despite his limitations.  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).  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).  The Court found Wischmann failed to establish the probative value of his evidence because it lacked detail about how the data was produced, and further, the attachments did not support the claims in his counsel’s letter.  Since the evidence was without merit, the ALJ had no duty to consider it. AFFIRMED.