Unreported / Non-Citable
Background
Andrea Lynn Bautel appealed the district court's decision affirming the Commissioner of Social Security's denial of her application for disability insurance benefits. The central dispute concerned whether a significant number of jobs existed in the national economy that Bautel could perform given her residual functional capacity. At the administrative hearing, a vocational expert (VE) testified that Bautel could perform approximately 58,200 jobs nationally. Bautel submitted counter-evidence, generated by SkillTRAN's Job Browser Pro, indicating she could perform only 16,432 jobs. The Administrative Law Judge (ALJ) acknowledged the discrepancy but concluded that the VE's testimony constituted substantial evidence supporting a finding of 'not disabled.' The district court affirmed the ALJ's decision.
On appeal, Bautel argued that the ALJ erred by failing to properly resolve the conflict between the VE's testimony and her counter-evidence. The Ninth Circuit considered the appeal under its recent precedent in Powley v. Bisignano, 169 F.4th 1158 (9th Cir. 2026), which clarified the standards for evaluating conflicting vocational evidence. The panel, consisting of Circuit Judges Nguyen, R. Nelson, and Desai, determined that the ALJ's handling of the evidentiary conflict was insufficient under governing law.
The Court’s Holding
The Ninth Circuit held that Bautel's counter-evidence was both 'significant and probative,' triggering the ALJ's duty to address and resolve the inconsistency with the VE's testimony. The evidence was significant because the 16,432-job estimate fell far below the VE's 58,200-job estimate and likely below the threshold for a 'significant number of jobs,' creating a reasonable probability of a different outcome. The evidence was probative because it cited methodology and sources, used the same Dictionary of Occupational Titles codes as the VE, and relied on SkillTRAN's Job Browser Pro, a data source frequently used by the Social Security Administration.
The court found that while the ALJ acknowledged the inconsistency, the ALJ failed to resolve it. Specifically, the ALJ did not adequately clarify or develop the record, did not ask the VE to explain the conflict, and did not determine whether the VE's explanation would have been reasonable. Citing Zavalin v. Colvin and Buck v. Berryhill, the court concluded that this failure constituted reversible error. Accordingly, the Ninth Circuit reversed the district court's judgment and remanded with instructions to return the case to the agency for further proceedings consistent with Powley.
Key Takeaways
- Uncontradicted vocational expert testimony can constitute substantial evidence of a significant number of jobs, but when contradicted by significant and probative counter-evidence, the ALJ must resolve the conflict.
- Counter-evidence is 'significant' if it suggests a job count far lower than the VE's estimate and potentially below the regulatory threshold for a 'significant number of jobs,' creating a reasonable probability of a different outcome.
- Counter-evidence is 'probative' when it discloses methodology, uses the same occupational codes as the VE, and relies on data sources (like SkillTRAN Job Browser Pro) recognized by the Social Security Administration.
- An ALJ's mere acknowledgment of a conflict is insufficient; the ALJ must actively develop the record, question the VE about the discrepancy, and assess the reasonableness of any explanation.
- The Ninth Circuit's decision in Powley v. Bisignano (2026) establishes the governing framework for evaluating such evidentiary disputes in the Ninth Circuit.
Why It Matters
This memorandum disposition reinforces the procedural rigor required of ALJs when vocational evidence conflicts in Social Security disability cases. By applying the Powley framework, the court clarifies that claimants' vocational reports—when methodologically transparent and sourced from SSA-recognized tools—demand substantive engagement from the ALJ, not just cursory mention. The ruling ensures that the 'significant number of jobs' determination rests on a fully developed record where competing data are tested and reconciled, protecting claimants from denials based on potentially inflated job estimates.