Biestek v. Berryhill

THE MEANING OF “SUBSTANTIAL EVIDENCE”

Biestek argues that the Supreme Court’s decision in Richardson v. Perales controls the “substantial evidence” standard required for expert evidence in Social Security disability hearings. According to Biestek, the Court’s decision in Perales—which found expert reports to constitute substantial evidence—highlights two considerations relevant to whether expert evidence constitutes substantial evidence. Biestek asserts that these two considerations were the evidence underlying the expert testimony and the procedures for testing the accuracy and importance of the expert evidence. Rely on these considerations, Biestek contends that, for expert testimony to be “substantial evidence”, it must be verifiable, which is best accomplished when the application may both cross-examine the expert and examine the expert’s data.

Biestek relies on this standard to claim that the Sixth Circuit erred in holding that the vocational expert’s testimony constituted substantial evidence. Biestek maintains that when a vocational expert withholds the data underlying their opinions, they deprive the court and applicant of the ability to verify the testimony. Without the underlying data, Biestek asserts, an applicant cannot uncover potential inaccuracies in the vocational expert’s testimony. Thus, Biestek argues that the Sixth Circuit erred in finding substantial evidence of the number of jobs available to Biestek because this finding was based only on the vocational expert’s untested say.

Finally, Biestek asserts that a mandatory production-upon-request requirement finds support in the Court’s substantial-evidence rulings in other administrative contexts. According to Biestek, the Court in Baltimore & Ohio Railroad Co. v. Aberdeen & Rockfish Railroad Co. held that the Interstate Commerce Commission, in the context of allocating railroad revenues between Southern and Northern rail lines, could not “improperly assume administrative expertise at the cost of actual evidence.” Likewise, Biestek asserts that in NLRB v. Columbian Enameling & Stamping Co., the Court held that the National Labor Relations Board’s conclusion that an employer improperly refused to collectively bargain was not supported by substantial evidence where the administrative record lacked facts supporting that conclusion.

On the other hand, Berryhill contends that Biestek misreads the Court’s decision in Perales. Berryhill asserts that the Court’s holding in Perales does not call for vocational experts to provide their data upon an applicant’s request for the expert’s testimony to constitute substantial evidence, as Biestek would have it. Rather, Berryhill states that the Court in Perales was concerned with the procedural due process requirements for expert testimony at the hearing level, which is different than the substantial evidence requirements used at the judicial review level. Berryhill accordingly asserts that the Sixth Circuit did not err in finding the vocational expert’s testimony to constitute substantial evidence.

Additionally, Berryhill counters that Biestek’s production-upon-request rule has no basis in the substantial-evidence standard because under the standard, only the substance of the administrative record is examined; not the procedure used to create that record. In other words—according to Berryhill—the Court has distinguished substantial evidence challenges concerning evidence already in the record from procedural challenges concerning submitting additional evidence into the record. Thus, Berryhill notes, a finding of substantial evidence is possible even where other evidence not present in the record can refute that finding. Finally, Berryhill emphasizes that, where an applicant fails to use procedures for testing an expert’s testimony. and where an applicant does not receive an expert’s underlying data, the end result is the same; the expert’s opinion remains in the record. Thus, Berryhill argues, it is illogical to conclude that an expert’s failure to provide data results in a lack of substantial evidence in an administrative record.

Finally, Berryhill disputes Biestek’s readings of Baltimore & Ohio Railroad and Columbia Enameling. Berryhill claims that the Court in Baltimore & Ohio Railroad simply decided that an expert agency cannot make factually unsupported conclusions—which is different than the issue here, where the conclusions of the agency are supported by the expert’s testimony placed in the record. Likewise, Berryhill asserts that the Court’s holding in Columbian Enameling was based on a lack of evidence, which is again unlike this case, because the vocational expert’s testimony is entered into evidence.

CREDIBILITY VERSUS RELIABILITY

Biestek contends that finding an expert’s word alone to constitute substantial evidence (1) violates the common law requirement that an expert’s testimony be reliable and (2) mistakes credibility for reliability. Biestek asserts that effective cross-examination of an expert is integral to assuring that expert’s reliability. When an applicant’s request for a vocational expert’s underlying data is rejected, Biestek argues, the cross-examination is rendered effectively meaningless because the applicant cannot verify that the expert used reliable data sources or that the expert’s conclusions follow from the data sources used. Moreover, while Biestek concedes that an expert’s experience and credibility are important, he argues that they nonetheless do not allow the applicant to test the reliability of the expert’s data or methodology.

Berryhill counters that the administrative hearing in this case fulfilled all procedural requirements. First, Berryhill asserts that vocational experts’ opinions are presumptively reliable due to the education, experience, and impartiality of vocational experts. Likewise, Berryhill argues that vocational experts’ credibility does increase the reliability of expert evidence, regardless of whether the expert is cross-examined. Berryhill contends that applicants can effectively scrutinize vocational experts’ opinions through cross-examination—even without obtaining the expert’s underlying data—by questioning the expert on their logic, analysis, and sources—something that Biestek’s counsel did not do.