Supportability of Vocational Testimony in Social Security Disability Cases - Melvin
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Supportability of Vocational Testimony in Social Security Disability Cases

by Melvin Cook

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Michael Biestek was a construction worker for most of his career. He stopped working after he developed hepatitis C, degenerative disk disease, and depression. He applied for social security disability insurance benefits.

After his claim was denied initially and following a reconsideration request, Mr. Biestek requested a hearing before an Administrative Law Judge.

At the hearing, it was conceded that, given his medical impairments, Mr. Biestek was unable to perform his prior work as a carpenter and general construction laborer. The questions that then needed to be decided were: 1) was Mr. Biestek capable of adjusting to other work, and, if so, 2) did such other work exist in significant numbers in the national economy?

Social Security disability hearings are intended to be informal, non adversarial proceedings. They are presided over by an administrative law judge (ALJ), who may receive evidence and examine witnesses. The ALJ is tasked with developing all the important evidence bearing on whether or not the claimant is disabled. The format of such a hearing is far less rigid than a formal court hearing and the traditional rules of evidence do not apply. See Richardson v. Perales, 402 U.S. 389, 400-401 (1971).

At the hearing, the ALJ asked questions of a vocational expert in order to determine if Mr. Biestek could make a transition to other, less demanding work. The vocational expert gave examples of two types of sedentary jobs Mr. Biestek could do: 1) a bench assembler, and 2) a sorter. Respecting whether such jobs existed in significant numbers in the national economy, the vocational expert testified that there were 240,000 bench assembler jobs and 120,000 sorter jobs nationwide.

Vocational Experts are commonly used at social security disability hearings in order to inform the ALJ about claimants’ prior work, as well as the wide world of work that exists in the national economy. They must have “expertise” and “current knowledge” of “working conditions and physical demands” of various jobs. When offering testimony, they may invoke not only publicly available sources, but also “information obtained directly from employers. They are expected to be able to readily produce at a hearing the source materials upon which their opinions are based.

On cross-examination Mr. Biestek’s attorney asked the vocational expert how she came up with those job numbers. She testified they came from the Bureau of Labor Statistics and her own private labor market surveys. The attorney asked for the vocational expert to produce copies of her labor market surveys so that he could test their reliability and accuracy through further cross-examination. She refused, citing client confidentiality as the reason. The attorney noted that any confidential information could be redacted. At this point, the ALJ interjected, stating that she would not require the vocational expert to produce her labor market surveys.

The ALJ issued a partially favorable decision, finding that Mr. Biestek became disabled only after reaching a certain age (special rules apply for disability claimants over the age of 50). However, the ALJ found that prior to reaching age 50, Mr. Biestek could make an adjustment to sedentary work.

In making her decision, the ALJ relied heavily on the vocational expert’s testimony, assigning it “great weight”, despite the fact that the expert had not produced her private labor market surveys as requested by the claimant’s attorney. Mr. Biestek appealed.

After his appeal was denied by the federal district court and the Sixth Circuit Court of Appeals, Mr. Biestek petitioned for a writ of certiorari from the U.S. Supreme Court, which granted the writ (the granting of such a writ signifies that the Supremes will hear and decide your case).

In his appeal, Mr. Biestek advocated for a rule that, if a vocational expert refuses to provide source materials she relied on as a basis for her testimony, that testimony can never constitute substantial evidence.

The problem, in my opinion, was that Mr. Biestek argued for too much. He conceded that a vocational expert’s testimony may rise to the level of substantial evidence even if she does not produce her source materials, as long as the claimant does not make a demand for them. It is the demand and subsequent refusal that trigger Mr. Biestek’s proposed rule.

Again, in my humble estimation, this was an inartful framing of the argument on the part of the claimant. After all, if expert evidence is insubstantial because of the witness’s failure to produce the source material upon which her opinion is based after a demand, it is difficult to see how the exact same evidence rises to the level of substantial merely because the claimant fails to make a demand for the supporting materials.

The Supreme Court declined to adopt to blanket rule proposed by Mr. Biestek and, stating that his entire appeal rested on his invitation to adopt this new rule, decided against him.

Justice Gorsuch wrote a very incisive dissent in which he pointed out that Mr. Biestek’s situation represented a substantial category of disability claimants, and that the Court had missed a golden opportunity to provide lower courts guidance on such cases. He opined that it was well within Mr. Biestek’s appeal request for the Court to decide in his favor even without adopting the categorical rule he proposed.

Justice Gorsuch asks us to consider ourselves in Mr. Biestek’s shoes. Suppose you have had a career in heavy labor and find yourself unable, due to severe medical impairments, to continue in your line of work. You apply for disability benefits and a hearing is held on your claim. You have proved your case to the point that Social Security now has a limited burden to show that you can adjust to other work.

At this point in the hearing a vocational expert, who is on contract with the Social Security Administration, offers testimony that there are significant numbers of other jobs you can still do despite your impairments. She says her testimony is based on publicly available information from the Bureau of Labor Statistics. However, these statistics in and of themselves do not prove the numbers of jobs that exist in specific vocations in the national economy. So, to buttress her testimony, the expert cites to her own private labor market surveys.

Okay, so far so good. But suppose you wish to test the credibility and accuracy of the expert’s testimony by examining the source materials upon which it was based. After examining the materials, you may then wish to follow up with probing questions of the expert regarding her methodology in conducting the labor market surveys. The expert’s reason for withholding the materials because they are from private client files is unconvincing, since any confidential information can be readily redacted. Nevertheless, you are summarily denied the opportunity to examine these source materials and, consequently, denied an opportunity to cross-examine the expert on the accuracy of the methodology on which her opinion is based.

Under these circumstances, would you feel that substantial justice had been done if the Administrative Law Judge denied your claim based in large part on the vocational expert’s testimony? Perhaps not.

Justice Gorsuch does not necessarily accept Mr. Biestek’s proposed per se rule. But he would apply a careful, case-by-case, fact intensive analysis in evaluating the expert testimony in cases similar to Mr. Biestek’s. In Mr. Biestek’s particular case, he would have found the expert’s opinion insubstantial.

See Biestek v. Berryhill, 587 U.S. _____ (2019).

It seems to me that where, as in Mr. Biestek’s case, a disability claimant is clearly precluded from performing his prior work and substantial swaths of jobs in the American economy are foreclosed to him due to his medical impairments, a heightened scrutiny of the vocational expert’s testimony is warranted. Justice Gorsuch’s case-by-case, fact intensive approach in scrutinizing expert testimony in such cases appears to be a reasonable approach.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

Contact a Salt Lake City Attorney Committed to Protecting Your Rights

When it comes the family law and social security disability, each client and case is different. It is also important to select an attorney with the experience, skills and professionalism required to address your legal issues. To learn more, contact the Salt Lake City law offices of Melvin A. Cook and schedule an initial consultation to discuss your case.

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