The Supreme Court has issued an opinion in Biestek v. Berryhill, a Social Security case. Here's an excerpt from the Supreme Court's syllabus of its opinion:
... Biestek proposes a categorical rule that the testimony of a vocational expert who refuses a request for supporting data about job availability can never clear that bar. To assess that proposal, the Court begins with the parties’ common ground: Assuming no demand, a vocational expert’s testimony may count as substantial evidence even when unaccompanied by supporting data.
If that is true, is it not obvious why one additional fact—a refusal to a request for that data—should make an expert’s testimony categorically inadequate. In some cases, the refusal to disclose data, considered along with other shortcomings, will undercut an expert’s credibility and prevent a court from finding that “a reasonable mind”could accept the expert’s testimony. But in other cases, the refusal will have no such consequence. Similarly, the refusal will sometimes interfere with effective cross-examination, which a reviewing court may consider in deciding how much to credit an expert’s opinion. But other times, even without supporting data, an applicant will be able to probe the strength of the expert’s testimony on cross-examination.Ultimately, Biestek’s error lies in his pressing for a categorical rule, applying to every case in which a vocational expert refuses a request for underlying data. The inquiry, as is usually true in determining the substantiality of evidence, is case-by-case. It takes into account all features of the vocational expert’s testimony, as well as the rest of the administrative record, and defers to the presiding ALJ, who has seen the hearing up close.By the way, here's an excerpt from the dissent of Justice Gorsuch, joined by Justice Ginsburg:
... Veteran Social Security practitioners must be feeling a sense of déjà vu. Half a century ago, Judge Henry Friendly encountered Kerner v. Flemming, 283 F. 2d 916 (CA2 1960). There, the agency’s hearing examiner offered “nothing save [his own] speculation” to support his holding that the claimant “could in fact obtain substantial gainful employment.” Id., at 921. The Second Circuit firmly explained that this kind of conclusory claim is insufficient to meet the substantial evidence standard. In response,the Social Security Administration began hiring vocational experts, like the one in this case, to document the number of jobs available to a given claimant. But if the government can do what it did in this case, it’s hard to see what all the trouble was for. The agency might still rest decisions on a hunch—just so long as the hunch comes from an agency contractor rather than an agency examiner. ...Justice Sotomayor also dissented separately but mostly agreed with Justice Gorsuch. It sound odd for Gorsuch, Ginsburg and Sotomayor to be on the same side but Social Security cases don't fall easily into some simple liberal-conservative dichotomy.
My first take from reading this is that a VEs refusal to provide underlying data can still mean the decision is not supported by substantial evidence, but not categorically. The only guidance the court appeared to offer was that a vigorous cross-examination of the VE on sources, methodology, and how conclusions were made can suffice to prove a lack of support for a VE conclusion. Doing that without having the VEs underlying evidence and with no advance notice possible of the VE's hearing testimony seems like SSA is asking claimants and reps to go into a boxing match with their hands tied behind their backs, but OK.
ReplyDeleteIn my opinion it seems a pyrrhic victory for SSA, as it will spawn many more disputes than it resolves at a time when agency resources are still strained. A skilled reps' due diligence will now include fully cross-examining VEs on methodology, sources, and conclusions when VEs refuse to provide data, as the court in Biestek seems to endorse. Courts reviewing such records are given no real guidance by the Supreme Court in how to resolve the cases so there will be more messy litigation. Disability claimants will feel they were not treated fairly when their claims are denied on the basis of secret, undiscoverable evidence which will even further encourage reapplications and appeals.
1:20om - so bring your own VE to testify! The national "firms" who browbeat the VEs and demand the data, then send in post hearing "briefs" objecting to the VE who testified at the hearing - are a complete joke. More often than not, I find the "brief" will be addressed to the wrong judge, name the wrong VE, and often have the wrong claimant's name in the body. Obviously no effort is made to tailor the brief to the facts of the case.
ReplyDeleteAnd the poor claimants are the ones who suffer, thinking that they are being properly represented.
If you're a rep trying to win the case at step 5 by outwitting the VE, you haven't properly done your job. Win the case at step 3 (Listing) or 3.5 (RFC). If you placidly concede that your client can do light work, then your client needs a new lawyer on appeal.
ReplyDelete@10:24
ReplyDeleteArgue at every step if appropriate. While our challenges to a VE, especially at step 5, are rare, there are legitimate challenges. Testimony contrary to controlling regulations (exertion, skill level, full-time vs part-time) are appropriate. Challenges as to whether the alternative work exists in the national economy are possible, albeit weaker.
@6:26
Well that's horrifying. As to post-hearing briefs objecting to the VE's actual testimony, would you rather it be post-hearing or before the AC? If a VE's testimony is plainly contrary to regulation, it seems like the responsible thing to do to notify the ALJ prior to a determination.
Attacks on the VE testimony at the hearing and via a post hearing brief are not about winning the case before the ALJ but about building your record for appeal. If you are lucky, and the testimony is the usual nonsense, then you can make a caring ALJ thing twice before denying. Or at least make it hard to provide a coherent rationale that takes into account what was raised and argued at the hearing. And it is that deficient, or not existent rationale that is the basis of the appeal that the AC (a joke) or the District Court will pay attention to. At least Beistek provides some language to the effect that if challenged well, the Court should consider the decision lacking in substantial evidence.
ReplyDeleteNot every case is a Listings case. And, of course, RFC is what determines disability. But if the ALJ, the decider of the RFC doesn't want to pay, the RFC found, legitimate or not, will lead the VE to say there are jobs. But when they say it in the face of an RFC that in the real world would mean no jobs (Brief and superficial contact with a supervisor) then you need to make your case and show that such a restriction is inconsistent with any work.
If the ALJ, the decider of the RFC, doesn't want to pay... "doesn't want to pay..." I may be cynical, but it seemed like that was why I was denied. The excuse given sounded like gobbledygook, with a bit of structure that made it look "good," yet having about as much logic and sense as the "Green New Deal." This decision makes as much sense as well. It seems they didn't want to state the obvious. An opinion without facts is basically just a guess. Even when they use facts, the facts are often obsolete.
ReplyDeleteSo, what you are basing someone's fate upon is really a series of guesses. The treating doctors give their opinions. Based upon those opinions, MEs give theirs. The ALJ asks if a theoretical person could work based upon theoretical RFCs, then applies the RFC he wants to. This is all especially true when something that can't be determined by a test, such as pain and mental illness. So, what do they expect people to do who can't really work, but the ALJ "doesn't want to pay?"