From “Has the Supreme Court Endorsed the Use of Junk Science in the Administrative State?” by Richard J. Pierce, Jr. published in The Regulatory Review:
In its famous opinion in Daubert v. Merrell Dow Pharmaceuticals, the U.S. Supreme Court took a major step toward assuring that our legal system functions on the basis of sound scientific principles. The Court held that judges must apply criteria based on such principles when they decide whether to admit expert testimony. ...
Daubert requires an expert witness to disclose the data and methodology they relied on as the basis for any opinion they propose to offer in court. The judge then decides whether the data and methodology are sufficiently reliable to support admitting the expert’s testimony. If the opposing counsel challenges the reliability of the data or methodology, the judge conducts a hearing during which opposing counsel has the opportunity to test the reliability of the data and methodology by cross-examining the witness.
Earlier this month, the Court issued a potentially infamous opinion that encourages agencies to rely on junk science. The facts of Biestek v. Commissioner of Social Security are simple. Biestek applied for Social Security disability benefits. At a hearing before an Administrative Law Judge (ALJ), Biestek claimed that he was so disabled that he could not perform the functions required by any job that is available in significant numbers in the U.S. economy. ...
In such a hearing, the government has the burden of proving the availability of a significant number of jobs that can be performed by someone with the age, education, experience, and health state of the applicant. The Social Security Administration (SSA) used a vocational expert as a witness, who testified that there were 120,000 jobs available for “sorters” and 240,000 jobs available for “bench assemblers” that Biestek could perform.
When asked to describe the basis for these numbers, the witness referred to two sources—the Bureau of Labor Statistics (BLS) and private surveys the witness had conducted for other clients. Since BLS does not report job availability statistics with the specificity required to support the number of jobs of a particular type the witness claimed to be available, the only possible basis for those numbers were the private surveys.
Biestek’s lawyer asked the witness to provide the private surveys. The witness refused on the basis that they were part of her confidential client files. ...
The majority [of the Supreme Court] reasoned that the ALJ could rely on the unsupported opinion of the witness for two reasons: the evidence satisfied the substantial evidence test and the Federal Rules of Evidence (FRE) do not apply to SSA disability hearings. The first reason is based on a misunderstanding of the substantial evidence test, while the second is based on a misunderstanding of the reasons why Congress decided that the FRE do not apply to agency hearings. ...
The Court’s opinion in Biestek has the potential to produce an administrative state in which many important decisions are based on junk science. As Jason Johnston has explained, many agencies have relied on junk science as the sole basis for decisions that have serious financial consequences. For instance, some decisions in which the U.S. Environmental Protection Agency (EPA) has required firms to incur billions of dollars in costs are based on findings from researchers who have refused to provide anyone, including EPA, with the data and analysis on which the findings are based. It is impossible to know whether those findings are supported by reliable data and analysis. ...
The Daubert Court did not indulge the naïve assumption that an expert should be believed simply because she has impressive credentials and an impeccable reputation. ...
5 comments:
Effectively, the Supreme Court said in Biestek that it is sometimes OK to reject disability claims based on evidence that the claimant never gets to see or directly challenge. The point on the decision encouraging junk science is well taken.
The bigger point is the injustice of telling many thousands of disability claimants that their urgently needed benefits can be denied without their even having a chance to even look at all the evidence the decision is based on. I can think of no instance in a just society, besides perhaps a very small number of cases involving national secrets and security, where such a rule should ever allowed. It is unjust to apply it against vulnerable people with disabilities. It undermines confidence in the fairness of the system and the accuracy of SSA disability decisions, if the official rule encourages ignorance of the basis of crucial opinion evidence in disability claims.
My husband has severe pain from spinal cord damage. Conveniently the judge ignored the permanent damage and focused on the minor issues. After 22 months, denied because his pain is not as bad as he stating. Mind you my husband is allergic to all nsaids, even tylenol. So now we make the decision of appeal council which lawyer said is 10% chance of winning or re file and lose all back pay. They stated there is 1.5 million jobs in three positions he can do with limitations. What employer is going to hire someone with multiply limitations. I guess having credit cards maxed out isn't enough we have to go bankrupt too. By the way the closest job is an hour away.
"It undermines confidence in the fairness of the system and the accuracy of SSA disability decisions, if the official rule encourages ignorance of the basis of crucial opinion evidence in disability claims."
This decision finally brings acknowledgment of the awesome and nearly infinite power of the Unitary Executive that has too long been absent from SSA judicial decisions. At long last, we have a Supreme Court that is willing to decide cases in the manner in which they must be decided.
What the Supreme Court has acknowledged is that the President has the power (and in fact, has always had the power) to create administrative facts ex nihilo. The Vocational Expert is merely the vessel that the President has selected to create the administrative facts necessary to fulfill his executive will.
Remember, this power can be removed by the President at any time by Executive Action.
The most baffling thing about the Biestek decision is the decrepit reasoning by the majority. The VE gave two reasons as the basis for his testimony 1) Bureau of Labor Statistics data and 2) His own secret data which he would not reveal. It was accepted by all that the first basis (BLS data) was false on its face because the BLS simply does not collect the information in question in the way the VE testified. In other words, and this is key, the VE gave false testimony in a manner that his credibility and the testimony he gave should have been in serious question. If someone came up to you and said something clearly false, would you take the next thing they told you on faith without verification? Would it be fair to obstruct someone else wishing to verify what they said in that situation?
When an expert clearly gives false testimony, shouldn't an adjudicator with any interest in well...competently adjudicating...hone in on the rest of that expert's testimony and test it for truth and accuracy? Isn't the credibility of the VE a serious question, when the ALJ is relying on the VE's testimony to decide the claim one way or another? If one of the two bases for the expert's critical testimony was false on its face, and there was means for testing the truth and accuracy of the second base, what do you do? Fail to test it, and accept what the false testifier said without verification? That is what a rube would do, or someone totally uninterested in getting at the truth of the matter. For the Supreme Court to put its stamp on that is disturbing, and people with disabilities should be concerned.
I always wondered where the VE's got some of these numbers. And now that the economy has improved these numbers have gone up! Who know there were a million ticket takers in the national economy? Nobody!
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