The Supreme Court has decided Biestek v. Berryhill, which considered how vocational expert (VE) testimony is evaluated under the substantial evidence standard in disability appeals. The question presented in Biestek was whether a VE’s testimony can constitute substantial evidence when, upon the claimant’s request, the expert fails to provide the underlying data on which the testimony is premised. The Supreme Court granted certiorari to resolve a conflict between federal appeals courts. The Seventh Circuit had held that a VE’s testimony could not constitute substantial evidence if the VE had declined the claimant’s request to provide supporting data. A number of other circuits, including the Second Circuit, had declined to adopt this rule.
In a disability hearing, a VE is often required to testify about the availability of work in the national economy the claimant can perform. In Biestek’s case, the VE testified to the existence of such jobs; Biestek’s representative asked the VE the source of her numbers. The VE mentioned her own individual labor market surveys, but said that she wanted to keep the surveys confidential. When Biestek’s representative suggested redacting the names on the surveys, the Administrative Law Judge stepped in and said he would not require the VE to produce the files. The Court of Appeals for the Sixth Circuit eventually affirmed the ALJ.
In a 6-3 decision, the Supreme Court declined to adopt a categorical rule that the VE’s supporting data must be provided in order for the testimony to constitute substantial evidence. Justice Kagan delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices, Thomas, Breyer, Alito, and Kavanaugh. The Court gave the hypothetical example of a well-credentialed expert who is able to explain how she arrived at her conclusions through a well-accepted methodology and is able to answer all questions clearly and cogently; according to the Court, such a person’s testimony could still constitute substantial evidence despite the failure to turn over supporting data. The Court did acknowledge, however, that in some cases it may be possible for an adverse inference to be drawn against a VE who refuses to provide supporting data where the ALJ has no other reason to trust the expert, or the testimony seems iffy on its face. As the Court stated, “[i]n some cases, the refusal to disclose data, considered along with other shortcomings, will prevent a court from finding that ‘a reasonable mind’ could accept the expert’s testimony.”
Justice Sotomayor filed a dissenting opinion, and Justice Gorsuch filed a separate dissent joined by Justice Ginsburg. Justice Sotomayor believed the substantial evidence standard was not met in Biestek’s case. But she agreed there could be some circumstances where failure to turn over supporting data could be justified, such as if it were overly burdensome.
Justice Gorsuch’s dissent made the point that prior cases have held that an expert who supplies only conclusory assertions fails the substantial evidence standard. Justice Gorsuch would have held that it is not reasonable for a factfinder to rely on the testimony of an expert who “(a) claims to possess evidence on the dispositive legal question that can be found nowhere else in the record, but (b) offers only a conclusion about its contents, and (c) refuses to supply the evidence when requested without showing that it can’t readily be made available.”
While it is not yet fully known how this decision will affect disability practice in the Second Circuit, it is worth considering doing more rigorous cross-examination regarding a VE’s supporting data. The Second Circuit in Brault v. Comm’r of Social Security, 683 F.3d 443 (2d Cir. 2012) was quite emphatic that a VE did not need to turn over supporting data. The Supreme Court, however, seemed more open to the possibility that failure to turn over such data could cause the testimony to fail the substantial evidence test when combined with other shortcomings. As Justice Gorsuch’s dissent states, “If my understanding of the Court’s opinion is correct, the good news is that the Court remains open to the possibility that in realworld cases like Mr. Biestek’s, lower courts may—and even should—find the substantial evidence test unmet. The bad news is that we must wait to find out, leaving many people and courts in limbo in the meantime.”
Going forward, especially in cases where the VE’s conclusions seem questionable, asking for the supporting data could be a wise cross-examination strategy. It may be also advisable to attack the reliability of the labor market surveys at issue. This can include asking whether the surveys fully match the job description in the Dictionary of Occupational Titles, how many employers were actually surveyed, and what was done to ensure statistical reliability and validity. And it may be helpful to ask whether the surveys were peer-reviewed or whether others have reached similar conclusions.
Thanks to Andrew Spink of LawNY in Geneva for his helpful summary of Biestek.