Can a vocational expert’s testimony in a Social Security disability benefits hearing constitute substantial evidence of job availability if the vocational expert does not provide the data underlying their conclusions upon the applicant’s request?
This case asks the Supreme Court to decide whether a vocational expert’s testimony can constitute substantial evidence of job availability when a Social Security disability claimant requests but is not suppled with the data underlying that expert’s testimony. Petitioner Michael J. Biestek contends that the substantial evidence standard requires vocational experts to produce the underlying data upon an applicant’s request; otherwise, the expert’s testimony is unverifiable and allows the expert’s word to be unlawfully substituted for actual substantial evidence. Respondent Nancy A. Berryhill, the acting Commissioner of Social Security, counters that the substantial evidence standard focuses on the contents of the hearing record, not the procedure used to make that record. Additionally, Berryhill responds that plaintiffs already effectively undercut a vocational expert’s testimony on cross-examination and thus do not need to review the expert’s data. The outcome of this case will have large implications on litigation strategy in Social Security disability claims, for both claimants and the government.
Questions as Framed for the Court by the Parties
Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised
In March 2010, Biestek applied to the Social Security Administration (“SSA”) for Supplemental Social Security Income and benefits under 40 C.F.R. § 404, alleging that he had been disabled and unable to work since October 2009. Biestek v. Comm’r of Soc. Sec. at 2. In August 2010, the SSA denied his application. Id. Biestek then requested a hearing with an Administrative Law Judge (“ALJ”) on the denial of his benefits claim. Id. The ALJ found that Biestek was not disabled for the purpose of receiving disability benefits. Id. Subsequently, Biestek sought review from the SSA Appeals Council, but was denied review. Biestek at 2. Hence, he appealed to the district court. Id. The court remanded the case to the SSA for an ALJ to hear his case again. Id.
During Biestek’s second hearing with the SSA, a vocational expert testified that there were jobs available throughout the time that Biestek was unemployed, that Biestek would have been able to work. Biestek at 14. The vocational expert based her testimony on private data and job analyses including her personal discussions with employers. Id. Biestek’s council requested that the vocational expert produce her private data; however, the vocational expert refused and the court refused to require her to produce her data. Id. Furthermore, based on the vocational expert’s testimony, the ALJ found there was work available to Biestek. Id. at 3, 14. Biestek appealed the finding that he was not disabled before May 4, 2013 to the district court. Biestek at 3. The district court affirmed the ALJ’s decision. Id.
In 2017, Biestek appealed the district court’s decision to the United States Court of Appeals for the Sixth Circuit. Biestek at 1. Biestek raised five claims before the Sixth Circuit, including the claim that the ALJ did not base its findings about job availability on substantial evidence. Id. at 3. Biestek argued that a vocational expert’s testimony based on undisclosed, private data is not substantial evidence of job availability. Id. at 13–14.
The Sixth Circuit, however, rejected Biestek’s argument. Id. The court found that the strict requirements of the Federal Rules of Evidence do not apply to Social Security disability proceedings, meaning that vocational experts can rely on a broad range of information that would not be admissible in an ordinary court. Id. at 14. The court then pointed to prior decisions noting that a vocational expert’s own professional expertise provides sufficient basis for his or her testimony. Id. at 15. Lastly, the court found that the ALJ appropriately weighed the credibility of the vocational expert and determined that the expert was credible, making it unnecessary to require the expert to produce the data supporting her testimony. Id. Accordingly, the Sixth Circuit affirmed the district court’s decision. Id. at 15.
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. See Brief for Petitioner, Michael J. Biestek at 22–25. 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. Id. at 23. 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. Id. at 23–24. 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. Id. at 25.
Biestek relies on this standard to claim that the Sixth Circuit erred in holding that the vocational expert’s testimony constituted substantial evidence. See id. at 25–28. 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. See id. at 25–26. Without the underlying data, Biestek asserts, an applicant cannot uncover potential inaccuracies in the vocational expert’s testimony. Id. at 27. 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. Id. at 27–28.
Finally, Biestek asserts that a mandatory production-upon-request requirement finds support in the Court’s substantial-evidence rulings in other administrative contexts. Id. at 30. 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.” Id. at 31–32. 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. Id. at 32.
On the other hand, Berryhill contends that Biestek misreads the Court’s decision in Perales. Brief for Respondent, Nancy A. Berryhill, Acting Commissioner of Social Security at 32. 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. Id. 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. See id. at 32–35. Berryhill accordingly asserts that the Sixth Circuit did not err in finding the vocational expert’s testimony to constitute substantial evidence. See id. at. 40.
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. See Brief for Respondent at 23–24, 26–27. 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. Id. at 27. Thus, Berryhill notes, a finding of substantial evidence is possible even where other evidence not present in the record can refute that finding. Id. 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. Id. at 30–31. 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. Id. at 31.
Finally, Berryhill disputes Biestek’s readings of Baltimore & Ohio Railroad and Columbia Enameling. Id. at 37. 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. Id. at 37–38. 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. Id. at 38–39.
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. See Brief for Petitioner, Michael J. Biestek at 36–37. Biestek asserts that effective cross-examination of an expert is integral to assuring that expert’s reliability. Id. at 45. 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. Id. at 45–46. 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. Id. at 51.
Berryhill counters that the administrative hearing in this case fulfilled all procedural requirements. Brief for Respondent, Nancy A. Berryhill, Acting Commissioner of Social Security at 43. First, Berryhill asserts that vocational experts’ opinions are presumptively reliable due to the education, experience, and impartiality of vocational experts. Id. at 44–45. Likewise, Berryhill argues that vocational experts’ credibility does increase the reliability of expert evidence, regardless of whether the expert is cross-examined. Id. at 45. 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. Id. at 48
FAIRNESS AND INTEGRITY OF DISABILITY HEARINGS
The National Association of Disability Representatives (“NADR”), in support of Biestek, asserts
that allowing vocational experts to rely on undisclosed, private data could cause ALJs to unfairly deny benefits based on speculation or inaccurate conclusions. See Brief of Amicus Curiae The National Association of Disability Representatives ("NADR"), in Support of Petitioner at 5. The National Organization of Social Security Claimants’ Representatives, AARP, and AARP Foundation (“NOSSCR et al.”) in support of Biestek notes that vocational experts demonstrate irreconcilable inconsistencies in the conclusions they reach on job numbers which could result in different outcomes for identical disability benefits claims. Brief of Amicus Curiae National Organization of Social Security Claimants’ Representatives; AARP, and AARP Foundation ("NOSSCR et al."), in Support of Petitioner at 6, 9. According to NADR, even if a vocational expert is not “consciously lying,” the expert could be relying on a faulty source of information, which could lead the ALJ to form the wrong conclusion if the ALJ cannot access and assess this source. Brief of Amicus Curiae NADR, in Support of Petitioner at 11. NADR argues that allowing vocational experts to rely on private, undisclosed data, would make the ability of millions of Americans to obtain critical benefits depend on a flawed system of “trust without verifying.” Id. at 5.
Berryhill argues that ALJs can ensure that they are relying on accurate conclusions from vocational experts without requiring the vocational experts to produce the data they use. See Brief for Respondent, Nancy A. Berryhill, Acting Commissioner of Social Security at 46, 51. According to Berryhill, adequate checks on the reliability of the vocational expert’s testimony already exist; for example, claimants can question the vocational expert and can present conflicting evidence and arguments. Id. When the claimant presents alternate estimates on how many jobs are available, the ALJ must address any large differences between the claimants’ vocational expert’s estimates and other evidence at the hearing in order to resolve any obvious conflict. Id. at 50–51. Further, if a vocational expert’s testimony conflicts with the Dictionary of Occupation Titles, the vocational expert must provide a reasonable explanation. Id. at 50. Berryhill further notes that applicants can refute the reliability of one expert’s testimony by submitting rebuttal evidence, including the opinion of another vocational expert, as Biestek did. Id. at 51.
NOSSCR et al. in support of Biestek argues that requiring vocational experts to produce the data supporting their conclusions will promote—rather than hinder—efficiency. Brief of Amicus Curiae National Organization of Social Security Claimants’ Representatives; AARP, and AARP Foundation ("NOSSCR et al."), in Support of Petitioner at 10. According to NOSSCR et al., if the vocational expert discloses his data, the claimant can point out flaws in the data or the vocational expert’s analysis. Id. at 11. NOSSCR et al. argues that this will make it easier for the ALJ to make the right decision the first time, thus avoiding future litigation. Id. at 12.
Further, according to NOSSCR et al., if the claimant raises legitimate concerns about the vocational expert’s testimony, the ALJ may award benefits to the claimant, which makes it more likely that the claimant will not resort to litigation in the future. Id. When the ALJ does not decide in the claimant’s favor, NOSSCR et al. argues, the ALJ will be able to thoroughly explain why it chose to deny benefits, addressing the claimant’s concerns with the vocational expert’s testimony, which also may avoid litigation. Id. NOSSCR et al. further explains that requiring vocational experts to produce their data should not make hearings less efficient, as vocational experts should already know what sources they used and be able to furnish those sources. Id. at 14.
Berryhill contends that requiring ALJs to abide by stringent guidelines based in the Rules of Evidence, such as a requirement that experts must produce underlying data, would complicate the Social Security hearing process. Brief for Respondent at 52. Requiring vocational experts in Social Security hearings to produce underlying information every time it is requested would increase the length of the hearings and add to the incredible backlog of cases awaiting disability hearings. Id. at 53–54. In addition, in light of the presumptive reliability of expert testimony and the ease with which it can be tested, Berryhill argues that requiring vocational experts to produce and disclose any data that they relied on to reach their conclusions would be impractical and unduly burdensome. Id. at 52. As Berryhill explains, vocational experts likely could not have all of their relevant data readily available at hearings and recesses to retrieve documents would result in significant delays. Id. at 52–53.
- Alexander Alberto Pabon, Due Process and Social Security: One Thread to Ponder Before Oral Argument in Biestek v. Berryhill, 107 Kentucky Law Journal Online (Nov. 1, 2018).
- Andrew Spink, SCOTUS to Rule on Vocational Testimony, Empire Justice Center (July 31, 2018).