FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARAHROSE KILPATRICK,

Plaintiff-Appellant,

v.

KILOLO KIJAKAZI, Acting 

Commissioner of Social Security,

Defendant-Appellee.

No. 20-35741

D.C. No.

6:19-cv-01640-

BR

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 PlaintiffAppellant.

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 “straightline 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.