The United States Supreme Court has granted review in Biestek v. Berryhill, a case concerning vocational expert testimony in disability appeals before the Social Security Administration. 2018 WL 1023337 (Mem.). The question presented concerns whether vocational expert testimony can constitute substantial evidence of “other work” available to a claimant when the vocational expert fails, upon request of the claimant, to provide the underlying data on which that testimony is premised.
In Biestek’s hearing, the vocational expert testified there was work in the economy that Biestek could perform. The vocational expert said her testimony was based on the Dictionary of Occupational Titles, but also noted that the Dictionary of Occupational Titles did not address all the issues the judge had asked about. As to those issues, the vocational expert said she relied on her professional experience in finding there were still jobs available to Biestek. Biestek’s attorney asked the vocational expert to produce underlying data or analyses in support of her statements; she refused, citing the confidentiality of her files. The ALJ declined to require her to produce such information, even in a redacted format.
The Sixth Circuit Court of Appeals affirmed the decision of the ALJ, saying that the vocational expert did not need to produce the underlying data. Biestek v. Commissioner of Soc. Sec., 880 778 (6th Cir. 2017). The Sixth Circuit adopted the same rule that has also been adopted here in the Second Circuit, where the court held in McIntyre v. Colvin that “a vocational expert is not required to identify with specificity the figures or sources supporting his conclusion, at least where he identified the sources generally.” 758 F.3d 146, 152 (2d Cir. 2014), citing Brault v. Commissioner of Soc. Sec., 683 F. 3d 443 (2012).
The Third and Ninth Circuits have also adopted similar positions in Welsh v. Commissioner of Soc. Sec., 662 F. Appx. 105 (3d Cir. 2016) and Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005).
On the other side of the divide is the Seventh Circuit, which has imposed a requirement that the vocational expert to provide the underlying data when asked. In Donahue v. Barnhart, the Seventh Circuit imposed a standard for expert testimony similar to Federal Rule of Evidence 702, which allows an expert witness to testify based on his or her professional experience if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. While the court noted that Rule 702 does not apply to disability adjudications, it stated that the “the idea that experts should use reliable methods does not depend on Rule 702 alone, and it plays a role in the administrative process because every decision must be supported by substantial evidence.” The court ruled that a vocational expert could give a bottom line, provided that the underlying data and reasoning are available on demand. 279 F.3d 441, 446 (7th Cir. 2001).
There is a clear circuit split because the majority of circuits have declined to hold that the requirements of Rule 702 have any bearing on disability hearings. The Sixth Circuit noted that “Congress specifically exempted Social Security disability proceedings from the strictures of the Federal Rules of Evidence, allowing ALJs to consider a broader range of potentially relevant information than would be admissible in an ordinary court of law.” Biestek’s petition for certiorari to the Supreme Court, on the other hand, argues that in other types of administrative proceedings, an expert’s testimony does not constitute “substantial evidence” absent any empirical data. A ruling for the government, Biestek argues, would place disability hearings separate and apart.
The Supreme Court will now resolve the split this coming term, with a decision likely no later than June of 2019. Will the Court adopt the rule of the Sixth and Second Circuits which does not require the vocational experts to provide the underlying data in their testimony, or will it adopt the Seventh Circuit position which requires that the underlying data be available on demand? NOSSCR intends to file an amicus brief in this case that will focus on the nature of administrative notice and the need for uniformity of approach.
While the case is pending, advocates at the hearing level may want to preserve objections to vocational witnesses who testify without providing underlying data, particularly in situations where the vocational witness is testifying to issues not directly addressed by the Dictionary of Occupational Titles. A ruling in favor of Biestek would give advocates here in the Second Circuit and across the country another tool to use in cross examining vocational experts, and be of potential benefit to claimants.
Thanks to Andrew Spink of LawNY in Geneva for this helpful summary.