SCOTUSblog has a report on the oral argument in Biestek v. Berryhill, the Supreme Court case on "whether the Social Security Administration may ground a decision to deny
benefits on the opinion of a vocational expert who refuses to disclose
the data on which that opinion relies." The bottom line:
... Both of the lawyers and several justices danced around a central underlying problem: Many people suspect that vocational experts’ opinions, whether favorable or unfavorable to claimants, have tenuous support. Indeed, vocational experts increasingly have become black boxes, churning out de facto decisions in many disability cases based on little more than guesswork. ...
The justices certainly identified several possible bases for a minimalist decision. They also, however, raised tantalizing hints of a broader ruling. If the court were to embrace the narrow view of the “substantial evidence” test, administrative agencies would have sweeping license to engage with arguments against their preferred decisions. On the other hand, several justices seemed disposed to force the Social Security Administration finally to address long-standing objections to the arbitrariness of vocational experts’ opinions.
I think there's reason to worry that Social Security will not be ready for the Court's decision. It's not a mere suspicion, it's a fact, that, at best, vocational expert testimony is little more than guesswork. Mostly, though, it's based upon the Dictionary of Occupational Titles (DOT) which is almost 40 years old! Nobody, including Social Security, thinks the DOT is reliable in 2018.
An adverse decision would cripple current OHO management, which is engaging in full on war with its ALJs. A centralized scheduling system and the removal of ALJ standing orders will eliminate ALJ discretion on case scheduling and lead to bloated dockets with minimal prep time (already happening here in the heartland). An adverse ruling in favor of Biestek will turn ALJ hearings into multi day mini trials, and that is the opposite of what Gruber and Neagle want now: 10 hearings a day with short, boilerplate-heavy decisions.
ReplyDeleteNot sure why it has to be a sweeping decision. If the VE says they have studies then they have to turn them over. They dont have to lie and say they have "studies" they sometimes now say "in my experience" which could be good enough even if they have no specifics. But they shouldnt be able to just make stuff up which sometimes they do. Amazing how they want to put it on the claimants attorney for not being more agressive in questioning the VE after the ALJ said the VE doesnt have to produce anything. Or that the volume of the hearings wont let them comply with Daubert
ReplyDeleteTruth and justice for claimants versus bureaucratic convenience...hmmm I wonder which one we should choose.
ReplyDeleteall a lot of nonsense.........
ReplyDeleteif the denial isn't based on past work, then go to the unskilled sedentary work.........which exists everywhere........and then get rid of a dozen or so "vocational rules".......
@5:59
ReplyDeleteI don't quite get your point. How do you handle non-exertional impairments then? Examples: A person who forgets half of what you tell them to do before they complete their assigned work tasks. A person with a mental illness who every couple of days would flip out on a supervisor, co-worker, or customer. A person who would be chronically absent or tardy due to their illness.
They may not meet a listing, but without doubt, they would never be able to keep any competitive job. SSA would do well to create MORE vocational rules to cover examples like that. I can't count the number of cases I have had where it was clear that the facts matched the above examples, but they weren't granted until at least the hearing level because nobody looked at the case with enough common sense to realize that a person with such limitations is clearly unemployable. More common sense vocational rules would encourage such claims to be approved at lower levels, resulting in better justice and reducing the backlog.
The most interesting thing about the Biestek case for me is speculation over whether the VE was in fact making stuff up when he/she claimed to have a study proving the point of his/her testimony. Imagine the embarrassment for the VE if the Supreme Court remands, ordering production of the documents, and the VE has got nothing. Or, just as bad, if the evidence the VE cited was clearly statistically insignificant, e.g. just a query to a few employers, for a job that has hundreds or thousands of employers and employees.
ReplyDeleteQuestion 1: Do you think SSA would prosecute the VE who actually gave such false testimony, if that in fact happened in this case? The taxpayer would have footed a sizeable bill in skilled employee time and effort for fighting a case all the way to the U.S. Supreme Court based on the testimony.
Question 2: If a VE intentionally (not just negligently) gave false testimony that was instrumental in a claimant being deprived of benefits for years, could the VE be liable to the claimant for consequential damages in tort? Would the intentional nature of the tort overcome the normal impediments to such claims?
to 5:59
ReplyDeleteActually, it doesn't.
And when you add in other physical or emotional problems (Brief and superficial interaction with supervisors, only use hands occasionally, need to break every 30 for bathroom due to various medical conditions like diabetes, hypertension and medications for hypertension, foot elevation due to edema, sit stand option, etc. etc. etc) and you are left with no work back in the real world.