Petitioners Brief — Michael J. Biestek, Petitioner v. Nancy A. Berryhill, Acting Commissioner of Social Security
Supreme Court briefAug 27, 2018
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No. 17-1184
IN THE
Supreme Court of the United States
_________
MICHAEL J. BIESTEK,
Petitioner,
v.
COMMISSIONER OF SOCIAL SECURITY,
Respondent.
________
On a Writ of Certiorari
To the United States Court of Appeals
For the Sixth Circuit
________
BRIEF OF PETITIONER
________
FREDERICK J. DALEY, JR.
MEREDITH MARCUS
DALEY DISABILITY LAW, PC
601 W. Randolph Street,
Suite 300
Chicago, IL 60661
(312) 561-3030
ISHAN K. BHABHA
Counsel of Record
NATACHA Y. LAM
LAUREN J. HARTZ
Jenner & Block LLP
1099 New York Ave., NW,
Suite 900
Washington, DC 20001
(202) 637-6327
IBhabha@jenner.com
i
QUESTION PRESENTED
When assessing an applicant’s eligibility for social
security benefits on the basis of a disability, an
administrative law judge (“ALJ”) must determine
whether the applicant “can make an adjustment to other
work.”
20 C.F.R. § 404.1520(a)(4)(v).
This
determination must be supported by substantial
evidence. See 42 U.S.C. § 405(g). In making the
determination, an ALJ is authorized to call a vocational
expert to testify about other work available to an
applicant. See 20 C.F.R. §§ 404.1566(e), 416.966(e).
These assessments occur hundreds of thousands of times
annually.
The question presented is:
Whether a vocational expert’s testimony can
constitute substantial evidence of “other work,” 20
C.F.R. § 404.1520(a)(4)(v), available to an applicant
for social security benefits on the basis of a disability,
when the expert fails upon the applicant’s request to
provide the underlying data on which that testimony
is premised.
ii
TABLE OF CONTENTS
QUESTION PRESENTED .............................................. i
TABLE OF AUTHORITIES ......................................... vi
OPINIONS BELOW ......................................................... 1
JURISDICTION ................................................................ 1
STATUTES
AND
REGULATIONS
INVOLVED........................................................................ 1
INTRODUCTION ............................................................. 3
STATEMENT OF THE CASE ....................................... 6
I.
II.
Social Security Disability Benefits ...................... 6
A.
Statutory Framework................................ 6
B.
Disability Determinations ......................... 8
C.
Vocational Experts .................................. 10
Factual Background ............................................. 15
SUMMARY OF ARGUMENT ...................................... 18
ARGUMENT .................................................................... 21
I.
A
VOCATIONAL
EXPERT’S
TESTIMONY CANNOT CONSTITUTE
“SUBSTANTIAL EVIDENCE” OF
“OTHER WORK” UNDER 42 U.S.C.
§ 405(g)
IF
THE
VOCATIONAL
EXPERT REFUSES TO PROVIDE,
UPON
REQUEST,
THE
DATA
UNDERLYING THAT TESTIMONY. ........... 21
iii
A.
B.
Richardson v. Perales Mandates
That Vocational Experts Provide
The Data Underlying Their
Conclusions Upon An Applicant’s
Request ...................................................... 22
1.
Perales identifies various
indicia of reliability that
expert
testimony
must
possess
to
constitute
“substantial evidence” under
§ 405(g) ........................................... 22
2.
Under
Perales,
the
testimony of a vocational
expert cannot constitute
substantial evidence when
an expert withholds the data
upon which the testimony is
based ............................................... 25
3.
Requiring
vocational
experts to provide upon
request the data underlying
their testimony satisfies the
indicia
of
reliability
identified in Perales ..................... 28
This Court’s Rulings In Other
Administrative Contexts Confirm
That
“Substantial
Evidence”
Requires Experts To Provide Upon
Request The Data Underlying
Their Testimony ....................................... 30
iv
II.
FINDING
AN
EXPERT’S
TESTIMONY,
ALONE,
TO
BE
SUBSTANTIAL
EVIDENCE
IGNORES
THE
REQUIREMENT
THAT TESTIMONY BE RELIABLE,
AND
CONFLATES
THE
CREDIBILITY OF AN EXPERT WITH
THE
RELIABILITY
OF
THE
EXPERT’S EVIDENCE ................................... 35
A.
Requiring vocational experts to
provide upon request the data
underlying their conclusions does
not import the Federal Rules of
Evidence into social security
hearings...................................................... 37
B.
Expert testimony in administrative
proceedings must be reliable, and
this Court has recognized that
reliability is best assured through
cross-examination of the data and
methodology resulting in the
expert’s conclusions. ................................ 41
C.
A vocational expert’s experience
and credibility do not assure
reliable conclusions................................... 49
v
III.
REQUIRING
VOCATIONAL
EXPERTS
TO
PROVIDE
ON
REQUEST THE DATA UNDERLYING
THEIR TESTIMONY IS CONSISTENT
WITH
THE
AGENCY’S
OWN
POLICIES AND WITH COMMON
SENSE................................................................... 52
CONCLUSION ................................................................ 56
vi
TABLE OF AUTHORITIES
CASES
Adkins v. Astrue, 226 F. App’x 600 (7th Cir.
2007) .......................................................................... 39
Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015) ......... 11
Andreu ex rel. Andreu v. Secretary of
Department of Health & Human Services,
569 F.3d 1367 (Fed. Cir. 2009) .............................. 51
Baltimore & Ohio Railroad Co. v. Aberdeen &
Rockfish Railroad Co., 393 U.S. 87 (1968) .... 31, 32
Barnhart v. Thomas, 540 U.S. 20 (2003) ..................... 3
Barrett v. Barnhart, 355 F.3d 1065 (7th Cir.
2004) .................................................................... 26, 29
Binion ex rel. Binion v. Chater, 108 F.3d 780
(7th Cir. 1997) .......................................................... 39
Bowen v. Yuckert, 482 U.S. 137 (1987)....................... 41
Brault v. Social Security Administration, 683
F.3d 443 (2d Cir. 2012) ............................... 13, 35, 37
Britton v. Astrue, 521 F.3d 799 (7th Cir. 2008) .. 40, 43
Browning v. Colvin, 766 F.3d 702 (7th Cir.
2014) .......................................................................... 50
Califano v. Goldfarb, 430 U.S. 199 (1977) ................... 6
Chavez v. Berryhill, 895 F.3d 962 (7th Cir.
2018) .................................................................... 26, 50
Consolidated Edison Co. of New York v.
NLRB, 305 U.S. 197 (1938) .................................... 26
vii
Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993) ............................. 38, 44, 45
Dickinson v. Zurko, 527 U.S. 150 (1999) ................... 32
Donahue v. Barnhart, 279 F.3d 441 (7th Cir.
2002) .............................................................. 28, 29, 39
Elm Grove Coal Co. v. Director, Office of
Workers’ Compensation Programs, 480
F.3d 279 (4th Cir. 2007) .......................................... 46
Federal Power Commission v. Florida Power
& Light Co., 404 U.S. 453 (1972) ..................... 33, 34
General Electric, Co. v. Joiner, 522 U.S. 136
(1997) ........................................................................ 55
Gisbrecht v. Barnhart, 535 U.S. 789 (2002) ............... 21
Heckler v. Campbell, 461 U.S. 458 (1983) ........... 55, 56
Heckler v. Day, 467 U.S. 104 (1984) ............................. 6
Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d
1183 (11th Cir. 2010) ............................................... 51
Holtz v. Astrue, No. 07-C-314-C, 2007 WL
5323758 (W.D. Wis. Nov. 8, 2007) ......................... 51
Khuzaie v. Commissioner of Social Security,
No. 1:14-CV-00199-SLC, 2016 WL 1253537
(N.D. Ind. Mar. 30, 2016) ....................................... 41
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137 (1999) ................................................................. 38
Marsh v. Oregon Natural Resources Council,
490 U.S. 360 (1989) ............................................ 42, 43
viii
Maslenjak v. United States, 137 S. Ct. 1918
(2017) ........................................................................ 21
McKinnie v. Barnhart, 368 F.3d 907 (7th Cir.
2004) .................................................................... 28, 29
Melendez-Diaz v. Massachusetts, 557 U.S. 305
(2009) ........................................................................ 45
NLRB v. Columbian Enameling & Stamping
Co., 306 U.S. 292 (1939) .............................. 27, 32, 33
Perry v. Leeke, 488 U.S. 272 (1989) ............................ 45
Powell v. Colvin, No. 1:13-CV-51, 2014 WL
1643313 (N.D. Ind. Apr. 22, 2014) ......................... 40
Purdy v. Berryhill, 887 F.3d 7 (1st Cir. 2018) .......... 35
Ramzan v. Colvin, No. 12 C 7362, 2015 WL
5921811 (N.D. Ill. Oct. 9, 2015) .............................. 53
Reynolds v. Astrue, No. 09-C-0537, 2010 WL
2900356 (E.D. Wis. July 21, 2010) ......................... 40
Richardson v. Perales, 402 U.S. 389 (1971) ..... passim
Ronning v. Colvin, No. 13 CV 8194, 2015 WL
1912157 (N.D. Ill. Apr. 27, 2015) ........................... 41
Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir.
2017) .......................................................................... 29
Sims v. Apfel, 530 U.S. 103 (2000) .............................. 48
Sullivan v. Zebley, 493 U.S. 521 (1990) ....................... 7
T-Mobile South, L.L.C. v. City of Roswell, 135
S. Ct. 808 (2015)....................................................... 30
ix
United States Steel Mining Co. v. Director,
Office
of
Workers’
Compensation
Programs, 187 F.3d 384 (4th Cir. 1999) ............... 43
United States v. Downing, 753 F.2d 1224 (3d
Cir. 1985) .................................................................. 47
United States v. Fosher, 590 F.2d 381 (1st Cir.
1979) .......................................................................... 47
Welsh v. Commissioner of Social Security, 662
F. App’x 105 (3d Cir. 2016) .................................... 35
In
re Zoloft (Sertraline Hydrochloride)
Products Liability Litigation, 858 F.3d 787
(3d Cir. 2017) ........................................................... 38
STATUTES
28 U.S.C. § 1254(1) .......................................................... 1
42 U.S.C. § 405(b)............................................................ 7
42 U.S.C. § 405(b)(1) ....................................... 1, 8, 35, 37
42 U.S.C. § 405(g).................................... 1, 3, 7, 9, 18, 21
42 U.S.C. § 414 ................................................................ 6
42 U.S.C. § 423 ................................................................ 6
42 U.S.C. § 423(d)(2)(A) ........................................... 1, 10
42 U.S.C. § 1381 .............................................................. 7
42 U.S.C. § 1382c(a)(3)(B) ........................................ 2, 10
Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 ............................................... 30
LEGISLATIVE MATERIALS
H.R. Rep. No. 76-728 (1939) .................................... 7, 31
x
H.R. Rep. No. 94-679 (1975) .................................... 7, 31
S. Rep. No. 76-734 (1939) ......................................... 7, 31
Delays in Social Security Appeals: Hearings
Before the Subcomm. on Social Security of
the H. Comm. on Ways and Means, 94th
Cong. (1975) ............................................................... 8
Hearings Relative to the Social Security Act
Amendments of 1939 Before the H. Comm.
on Ways and Means, 76th Cong. (1939)
(proposed changes to the Social Security
Act attached to letter of Dr. Arthur J.
Altmeyer, Chairman, Social Security
Board (Dec. 30, 1938)) .............................................. 8
OTHER AUTHORITIES
20 C.F.R. § 404.902 ......................................................... 9
20 C.F.R. § 404.907 ......................................................... 9
20 C.F.R. § 404.914 ......................................................... 9
20 C.F.R. § 404.920 ......................................................... 9
20 C.F.R. § 404.950(d) .................................................. 24
20 C.F.R. § 404.967 ......................................................... 9
20 C.F.R. § 404.981 ......................................................... 9
20 C.F.R. § 404.1503 ....................................................... 9
20 C.F.R. § 404.1505 et seq............................................. 7
20 C.F.R. § 404.1512(b)(3) ............................................ 10
20 C.F.R. § 404.1520(a)(4)(i) .......................................... 9
20 C.F.R. § 404.1520(a)(4)(ii) ......................................... 9
xi
20 C.F.R. § 404.1520(a)(4)(iii) ........................................ 9
20 C.F.R. § 404.1520(a)(4)(iv) ....................................... 9
20 C.F.R. § 404.1520(a)(4)(v) ............................... 2, 3, 10
20 C.F.R. § 404.1563(d) ................................................ 17
20 C.F.R. § 404.1566(d) ................................................ 12
20 C.F.R. § 404.1566(e)................................................. 10
20 C.F.R. § 404.1567(a)................................................. 50
20 C.F.R. § 404.1567(b) ................................................ 50
20 C.F.R. § 416.903 ......................................................... 9
20 C.F.R. § 416.905 et seq............................................... 7
20 C.F.R. § 416.912(b)(3) .............................................. 10
20 C.F.R. § 416.920(a)(4)(i) ............................................ 9
20 C.F.R. § 416.920(a)(4)(ii) ........................................... 9
20 C.F.R. § 416.920(a)(4)(iii) .......................................... 9
20 C.F.R. § 416.920(a)(4)(iv) ......................................... 9
20 C.F.R. § 416.920(a)(4)(v) .................................... 3, 10
20 C.F.R. § 416.963(d) .................................................. 17
20 C.F.R. § 416.966(d) .................................................. 12
20 C.F.R. § 416.966(e)................................................... 10
20 C.F.R. § 416.1402 ....................................................... 9
20 C.F.R. § 416.1407 ....................................................... 9
20 C.F.R. § 416.1414 ....................................................... 9
20 C.F.R. § 416.1429 ....................................................... 9
xii
20 C.F.R. § 416.1467 ....................................................... 9
20 C.F.R. § 416.1481 ....................................................... 9
Bureau of Labor Statistics, U.S. Dep’t of
Labor,
Occupational
Employment
Statistics: Occupational Employment and
Wages, May 2017: 35-3031 Waiters and
Waitresses (Mar. 30, 2018), https://www.
bls.gov/oes/current/oes353031.htm ...................... 13
2 Thomas E. Bush, Social Security Disability
Practice (2d ed. 2017) ....................................... 10, 14
DOT 311 Waiters/Waitresses, and Related
Food Service Occupations ..................................... 12
Jon C. Dubin, Overcoming Gridlock: Campbell
After
a
Quarter-Century
and
Bureaucratically Rational Gap-Filling in
Mass Justice Adjudication in the Social
Security
Administration’s
Disability
Programs, 62 Admin. L. Rev. 937 (2010) ...... 11, 48
Geoffrey Gilbert, The Law of Evidence (4th ed.
1777) .......................................................................... 44
Nathaniel O. Hubley, The Untouchables: Why
a Vocational Expert’s Testimony in Social
Security Disability Hearings Cannot Be
Touched, 43 Val. U. L. Rev. 353 (2008)................ 11
Carolyn A. Kubitschek & Jon C. Dubin, Social
Security Disability: Law & Procedure in
Federal Court, Westlaw (Apr. 2018
Update) .................................................................... 26
xiii
Stephan Landsman, Of Witches, Madmen, and
Products Liability: An Historical Survey
of the Use of Expert Testimony, 13 Behav.
Sci. & L. 131 (1995) ................................................. 45
1 McCormick On Evidence (Kenneth S. Broun
ed., 7th ed. 2013)...................................................... 44
Albert S. Osborn, Reasons and Reasoning in
Expert Testimony, 2 Law & Contemp.
Probs. 488 (1935) ..................................................... 44
Social Security Advisory Board, Filing for
Social Security Benefits: What Impact
Does Professional Representation Have on
the Process at the Initial Application
Level? (Sept. 2012), https://legalaid
research.org/wp-content/uploads/ssabsocial-security-disability-representation2012.pdf .................................................................... 48
SSA, Vocational Expert Handbook (Aug.
2017), https://www.ssa.gov/appeals/public_
experts/Vocational_Experts_(VE)_Hand
book-508.pdf................................. 4, 10, 11, 12, 14, 53
SSR 00-4P, 2000 WL 1898704 (Dec. 4, 2000) ............. 54
SSR 96-9P, 1996 WL 374185 (July 2, 1996) ............... 16
OPINIONS BELOW
The decision of the Sixth Circuit (Pet. App. 1a) is
reported at 880 F.3d 778 (6th Cir. 2017). The decision of
the district court (Pet. App. 25a) is unreported.
JURISDICTION
The judgment of the Sixth Circuit was entered on
December 27, 2017.1 This Court has jurisdiction
pursuant to 28 U.S.C. § 1254(1).
STATUTES AND REGULATIONS INVOLVED
42 U.S.C. § 405(b)(1) provides:
Evidence may be received at any hearing before
the Commissioner of Social Security even though
inadmissible under rules of evidence applicable to
court procedure.
42 U.S.C. § 405(g) provides:
The findings of the Commissioner of Social
Security as to any fact, if supported by
substantial evidence, shall be conclusive.
42 U.S.C. § 423(d)(2)(A) provides:
An individual shall be determined to be under a
disability only if his physical or mental
impairment or impairments are of such severity
that he is not only unable to do his previous work
but cannot, considering his age, education, and
work experience, engage in any other kind of
substantial gainful work which exists in the
1
The district court had jurisdiction over this case pursuant to 42
U.S.C. § 405(g).
2
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied
for work. For purposes of the preceding sentence
(with respect to any individual), “work which
exists in the national economy” means work
which exists in significant numbers either in the
region where such individual lives or in several
regions of the country.
42 U.S.C. § 1382c(a)(3)(B) provides:
[A]n individual shall be determined to be under a
disability only if his physical or mental
impairment or impairments are of such severity
that he is not only unable to do his previous work
but cannot, considering his age, education, and
work experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied
for work. For purposes of the preceding sentence
(with respect to any individual), “work which
exists in the national economy” means work
which exists in significant numbers either in the
region where such individual lives or in several
regions of the country
20 C.F.R. § 404.1520(a)(4)(v) provides:
At the fifth and last step, we consider our
assessment of your residual functional capacity
and your age, education, and work experience to
3
see if you can make an adjustment to other work.
If you can make an adjustment to other work, we
will find that you are not disabled. If you cannot
make an adjustment to other work, we will find
that you are disabled.
INTRODUCTION
Under 20 C.F.R. § 404.1520(a)(4) and 20 C.F.R.
§ 416.920(a)(4), an applicant must satisfy a “five-step
sequential evaluation process” in order to demonstrate
eligibility for social security benefits in light of a
disability. Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
For the first four steps—through which an applicant
must demonstrate the existence of a severe, medically
determinable impairment that renders the applicant
unable to perform his or her prior work—the applicant
bears the burden of proof. If the applicant fails to meet
this burden, he or she is deemed not disabled, and social
security benefits are denied. If the applicant satisfies
the first four steps, however, the burden shifts at the
fifth step to the Social Security Administration
(“agency”), which must demonstrate that the applicant
can “make an adjustment to other work” and thus does
not qualify for benefits. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). Upon judicial review, every factual
finding made by the Administrative Law Judge
(“ALJ”)—including the ALJ’s findings on each of the
five steps—must be supported by substantial evidence
to be deemed conclusive. See 42 U.S.C. § 405(g).
To satisfy its burden of proof in demonstrating the
existence of “other work” available to applicants, the
agency invariably relies upon the testimony of
“vocational experts”—hired witnesses who are meant to
4
“provid[e] impartial expert opinion evidence about an
applicant’s vocational abilities.”
SSA, Vocational
Expert Handbook at 7 (Aug. 2017), https://www.ssa.gov/
appeals/public_experts/Vocational_Experts_(VE)_Han
dbook-508.pdf (Vocational Expert Handbook). These
experts testify on two key points: the type of jobs
available to an applicant and the number of such jobs
that exist in the national economy.
At Petitioner Michael Biestek’s disability benefits
hearing, a vocational expert opined that Petitioner could
have performed certain “sedentary unskilled
occupations,” specifically “bench assembler” and
“sorter.” Pet. App. 117a. Next, the expert opined that
between 1000 and 8000 such jobs existed in Southeast
Michigan within the relevant timeframe. The expert
further testified that even an applicant with additional
physical limitations would be able to perform the
identified jobs, although the number of bench assembler
and sorter jobs would drop by “about 20 to 30 percent.”
Pet. App. 117a.
Petitioner’s lawyer questioned the accuracy of these
figures and asked the expert for her data sources. In
response, the expert referenced the Bureau of Labor
Statistics “as well as [her] own individual labor market
surveys.” Pet. App. 119a. When Petitioner’s lawyer
asked for those surveys the expert refused to provide
them in any form out of a concern for the “confidentiality
of her files.” Petitioner’s lawyer pressed the issue and
proposed a solution to ameliorate the “confidentiality”
concern, but the ALJ cut off this line of inquiry. As a
result, the expert’s conclusion regarding the “other
work” available to Petitioner—the sole basis for the
5
agency’s denial of benefits for the designated period—
was insulated from any meaningful scrutiny or
evaluation.
In affirming the ALJ’s ruling, the Sixth Circuit held
that the testimony of a vocational expert, by itself, could
constitute substantial evidence of the “other work”
available to an applicant, even when the expert’s
testimony was based on data the expert withheld on
cross-examination.
That decision is wrong.
It fails to require
“substantial evidence” supporting the ALJ’s findings to
sustain those findings on judicial review. It forecloses
any meaningful assessment of the reliability of the
expert’s sources and the logic of the expert’s
methodology. It violates this Court’s direction that the
process for determining eligibility for Social Security
disability benefits be fair and efficient. And it defies
common sense. If the expert’s opinion has a basis in real
and reliable sources, there is no reason in law or logic
why the expert should withhold those sources upon the
applicant’s express request. If, by contrast, the expert
has no source for conclusions about the number of jobs
available to an applicant, the expert’s testimony
standing alone cannot constitute substantial evidence of
the other work available to an applicant.
Since 2002, the Seventh Circuit has required
vocational experts to provide upon request the data
upon which their testimony is based in order for the
expert’s testimony to constitute substantial evidence.
That rule complies with Congress’s mandate that the
agency’s factual findings be supported by substantial
evidence in order to be conclusive upon judicial review.
6
And the rule works. Over the last sixteen years, the
Seventh Circuit has enforced this rule without
compromising the efficiency, finality, or fairness of social
security hearings. This rule is also consistent with the
agency’s policies requiring vocational experts to testify
consistent with the data sources upon which they rely.
The decision of the Sixth Circuit should be reversed.
STATEMENT OF THE CASE
I. Social Security Disability Benefits
“From its inception, the social security system has
been a program of social insurance” that provides
“protection against the economic consequences of old
age, disability, and death.” Califano v. Goldfarb, 430
U.S. 199, 208 (1977). Undoubtedly, the “size and extent”
of the program is “difficult to comprehend.” Richardson
v. Perales, 402 U.S. 389, 399 (1971). Yet, as this Court
has instructed, the social security system “must be
fair—and it must work.” Id. (quoting Gov’t’s Br.).
A. Statutory Framework
The Social Security Act, passed in 1935, provides
monetary benefits to individuals “whose disability
prevents them from pursuing gainful employment.”
Heckler v. Day, 467 U.S. 104, 106 (1984). Under Title II
of the Act, individuals may receive social security
disability insurance (SSDI) benefits if they have a
qualifying disability and are fully insured under the
program. 42 U.S.C. § 423; see id. § 414 (defining “fully
insured”). Under Title XVI of the Act, individuals may
receive supplemental security income (SSI) benefits if
they have a qualifying disability and meet a low-income
7
requirement. 42 U.S.C. § 1381. Both programs define
qualifying disabilities in the same way. See Sullivan v.
Zebley, 493 U.S. 521, 525 (1990) (“[The] statutory
definition of disability [for SSI benefits] was taken from
Title II of the Social Security Act.”); compare 20 C.F.R.
§ 404.1505 et seq. (disability determinations for SSI
benefits), with id. § 416.905 et seq. (disability
determinations for SSDI benefits).
In 1939, Congress added a judicial review provision
to the Act. The provision states, “[t]he findings of the
Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive.”
42 U.S.C. § 405(g). In adding this provision, Congress
envisioned a judicial review process “similar to those
made for the review of decisions of many administrative
bodies.” H.R. Rep. No. 76-728, at 43 (1939); S. Rep.
No. 76-734, at 52 (1939) (same). Congress has since
confirmed that it intended “common procedural
safeguards provided under the Social Security Act and
the Administrative Procedure Act,” including “the same
rights to hearing and administrative and judicial
review.” H.R. Rep. No. 94-679, at 2-3 (1975).
At the same time that it provided for judicial review
of social security determinations, Congress also clarified
the procedures applicable in social security hearings:
“Evidence may be received at any hearing before the
Commissioner of Social Security even though
inadmissible under rules of evidence applicable to court
procedure.” 42 U.S.C. § 405(b). Through this language,
Congress “widen[ed] the scope and . . . improve[d] the
adequacy and the administration of these programs.”
H.R. Rep. No. 76-728, at 5. Consideration of evidence
8
beyond that normally permitted under formal rules of
evidence “improv[ed]” benefits determinations by
allowing consideration of all relevant information. See
Hearings Relative to the Social Security Act
Amendments of 1939 Before the H. Comm. on Ways and
Means, 76th Cong. 3 (1939) (quoting proposed changes
to the Social Security Act attached to letter of Dr.
Arthur J. Altmeyer, Chairman, Social Security Board
(Dec. 30, 1938)). Likewise, when Congress revisited this
language in 1975, it explained that Title II of the Social
Security Act is governed by the Administrative
Procedure Act, which in turn “permits consideration of
hearsay evidence while preserving the right of crossexamination.” Delays in Social Security Appeals:
Hearings Before the Subcomm. on Social Security of the
H. Comm. on Ways and Means, 94th Cong. 9 (1975)
(quoting Am. Bar Ass’n Brief Amicus Curiae at 12,
Richardson v. Perales, 402 U.S. 389 (1971), 1970 WL
136652). Congress harmonized Title XVI with Title II
and the Administrative Procedure Act, such that
disability hearings are not governed by formal rules of
evidence but nonetheless guarantee “adequate notice,
access to evidence, [and the] right to cross examination.”
Id. at 10.
B. Disability Determinations
The Commissioner of Social Security is authorized to
make factual findings and decisions “as to the rights of
any individual applying for” social security disability
benefits. 42 U.S.C. § 405(b)(1). Those findings and
decisions take place in a tiered review process. To begin,
an applicant submits a written application that results in
an initial disability determination. Depending on the
9
applicant’s state of residence, either the federal agency
or a state counterpart makes that determination. 20
C.F.R. §§ 404.1503, 416.903. An applicant dissatisfied
with the initial determination may seek reconsideration,
or request a hearing before a disability hearing officer,
or both. 20 C.F.R. §§ 404.902, 404.907; id. §§ 416.1402,
416.1407; id. §§ 404.914, 416.1414. If that hearing does
not yield a satisfactory result, an applicant may seek a
new hearing before an ALJ. 20 C.F.R. §§ 404.920,
416.1429. The applicant may appeal the ALJ’s decision
to the Appeals Council. 20 C.F.R. §§ 404.967, 416.1467.
Applicants who exhaust these procedures may finally
seek judicial review. 20 C.F.R. §§ 404.981, 416.1481; see
also 42 U.S.C. § 405(g).
To qualify for either SSI or SSDI benefits on the
basis of disability, an applicant must satisfy a five-step
test. First, the applicant must not be engaged in any
substantial
gainful
activity.
20
C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, the
applicant must have a severe medically determinable
physical or mental impairment.
20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
Third, if the
applicant’s impairment meets or equals an impairment
listed in Appendix 1 of the Commission’s regulations, the
applicant is disabled and therefore eligible for benefits.
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the applicant’s impairment does not satisfy the
third step, two steps remain. Thus, fourth, the applicant
must be unable to perform his or her prior work. 20
C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). And, fifth,
the applicant must be unable, based on impairment, age,
education, and work experience, to adjust to other work
10
available in the national economy—defined as “work
which exists in significant numbers either in the region
where such individual lives or in several regions in the
country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see
also 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
Failure on any step, except for step three, renders the
applicant ineligible for social security benefits.
The applicant bears the burden of proof for the first
four steps. At the fifth step, however, the burden shifts
to the agency to “provide evidence about the existence
of work in the national economy that [the applicant] can
do,” taking into account the applicant’s “residual
functional capacity . . . , age, education, and work
experience.” 20 C.F.R. §§ 404.1512(b)(3), 416.912(b)(3)
(internal citations omitted).
C. Vocational Experts
To meet its burden at step five, the agency “may use
the services of a vocational expert or other specialist.”
20 C.F.R. §§ 404.1566(e), 416.966(e). Vocational experts
are hired by the agency to “provid[e] impartial expert
opinion evidence . . . that an ALJ considers when making
a decision about disability.”
Vocational Expert
Handbook at 3.
“Indeed, from an institutional
perspective, the primary purpose of vocational expert
testimony is to meet [the agency’s] burden of proof in
denying benefits to a disability claimant.” 2 Thomas E.
Bush, Social Security Disability Practice § 340 (2d ed.
2017). A vocational expert should have “[u]p-to-date
knowledge of, and experience with, industrial and
occupational trends and local labor market conditions,”
“[i]nvolvement in or knowledge of vocational
11
counseling” and the job placement of adults with
disabilities, and experience using certain vocational
resources published by the government. Vocational
Expert Handbook at 8. But those qualifications are not
mandatory. Indeed, “there are no readily available
published standards for [vocational expert] certification,
selection, or training.” Jon C. Dubin, Overcoming
Gridlock: Campbell After a Quarter-Century and
Bureaucratically Rational Gap-Filling in Mass Justice
Adjudication in the Social Security Administration’s
Disability Programs, 62 Admin. L. Rev. 937, 968 (2010).
As a result, “the experience, knowledge, ability,
understanding of the [vocational expert] role, and the
prejudices of individual [vocational experts] vary much
more widely than do the comparable skills and
experience of medical experts.” Nathaniel O. Hubley,
The Untouchables: Why a Vocational Expert’s
Testimony in Social Security Disability Hearings
Cannot Be Touched, 43 Val. U. L. Rev. 353, 368 n.56
(2008) (quoting Thomas E. Bush, Social Security
Disability Practice § 340 (2006)). Vocational experts
“often rely on assertions of personal knowledge,
experience, or unspecified industrial surveys to justify
job incidence conclusions.” Overcoming Gridlock, 62
Admin. L. Rev. at 966. Courts and commentators have
“expressed concern with the source and validity of the
statistics that vocational experts trot out in social
security disability hearings.” Alaura v. Colvin, 797 F.3d
503, 507 (7th Cir. 2015) (internal citations omitted). In
some instances, the conclusions offered by vocational
experts seem “likely . . . to be a fabrication.” Id. at 508.
As noted above, the ALJ must determine at step five
whether there is other work available to the applicant.
12
Frequently, ALJs make this determination by asking
vocational experts hypothetical questions regarding
other available work. As the agency recognizes, the ALJ
uses hypothetical questions because, “in many cases, the
ALJ will not have determined what the claimant’s
[residual functional capacity] is when he or she asks [the
vocational expert] for opinions about work.” Vocational
Expert Handbook at 35-36. Thus, for example, at
Petitioner’s hearing, the ALJ asked the vocational
expert about the availability of unskilled light work,
unskilled sedentary work, and unskilled work under the
sedentary level. Pet. App. 116a-117a.
The ALJ will also take administrative notice of
“reliable job information available from various
governmental and other publications,” including the
Dictionary of Occupational Titles (DOT), the Bureau of
the Census’ County Business Patterns and Census
Reports, the SSA’s Occupational Analyses, and the
Bureau of Labor Statistics’ (“BLS”) Occupational
Outlook Handbook. 20 C.F.R. §§ 404.1566(d), 416.966(d).
Vocational experts typically rely, at least in part, on
those types of publications. But each publication has
limitations. The DOT, for example, lists the job
requirements for highly specific positions. See, e.g., DOT
311 Waiters/Waitresses, and Related Food Service
Occupations (listing, under separate job codes, “banquet,
head,” “captain,” “head,” “bar,” “dining car (r.r.
transp.),” “formal,” “informal,” “room service,” “take
out,” and “buffet”). The ALJ and vocational expert,
therefore, can pinpoint which waiter/waitress jobs an
unskilled individual can perform (such as a take-out
waiter/waitress) and which they cannot (such as head
13
waiter/waitress for a banquet). But “[t]he DOT . . . just
defines jobs. It does not report how many such jobs are
available in the economy.” Brault v. Soc. Sec. Admin.,
683 F.3d 443, 446 (2d Cir. 2012) (emphasis in original).
Census data from the BLS contain information
regarding the number of jobs available at metropolitan,
state, and national levels. But the BLS aggregates jobs
numbers for categories broader than those in the DOT.
Thus, for example, BLS data will show the number of
“waiter/waitress” jobs available nationally and by state
but will not show which of these waiter/waitress jobs
require unskilled or skilled labor, or which require
heavy, medium, light, or sedentary exertion. See, e.g.,
Bureau of Labor Statistics, U.S. Dep’t of Labor,
Occupational Employment Statistics: Occupational
Employment and Wages, May 2017: 35-3031 Waiters
and Waitresses (Mar. 30, 2018), https://www.bls.gov/oes/
current/oes353031.htm. The Occupational Employment
Quarterly, a private publication, provides jobs numbers
at a greater level of specificity than the BLS. But it uses
data categorized under the Bureau’s Standard
Occupational Classification System (SOC), a more recent
categorization system than the DOT. Thus, taking the
categories of jobs from the DOT and matching them with
the numbers of jobs in the Occupational Employment
Quarterly requires analysis and judgment calls. “[A]
VE must use some method for associating SOC-based
employment numbers to DOT-based job types. The
problem, however, is that DOT codes are much more
granular than SOC codes,” with thousands more job
titles in the DOT than in the SOC. Brault, 683 F.3d at
446.
14
Vocational experts often resort to other sources of
data for their testimony as well. Especially for the
availability of sedentary unskilled jobs, vocational
experts “tend to testify about numbers of jobs based on
faulty assumptions with little or no support for their
conclusions other than their own ‘personal experience.’”
2 Social Security Disability Practice § 348.8 (2d ed.
2017). By way of illustration, a vocational expert might
be asked to further refine job numbers to estimate, for
example, the number of “bench sorter” jobs that permit
individualized accommodations like unscheduled breaks
for sitting. Cf. id. § 340 (“[W]hile vocational experts do
have some expertise in assessing vocational
opportunities, they have virtually no expertise in
assessing how many jobs exist for a particular [residual
functional capacity].”). None of the publicly available
data sources evaluate the availability of work with these
types of limitations.
Thus in testifying on such
questions, vocational experts rely upon privately
sourced data.
Whatever the vocational expert relies upon, the
expert should “be prepared to cite, explain, and furnish
any sources [for his or her] testimony.” Vocational
Expert Handbook at 3, 19, 20, 28, 31. According to the
agency’s guidance, “[t]he ALJ will not rely on [the
vocational expert’s] testimony alone to make his or her
ultimate decision about disability or any of the
vocational findings that go into the decision.” Id. at 9.
But these guidelines are not binding on vocational
experts or the ALJs. Thus, if a vocational expert refuses
to provide his or her sources, the applicant has no means
of examining whether the expert’s conclusions are the
15
result of a reliable methodology applied to reliable data.
Unless, that is, the hearing takes place within the
Seventh Circuit.
II. Factual Background
Petitioner Michael Biestek worked for most of his
career building scaffolding on construction sites. Pet.
App. 3a, 109a. He became unemployed in June 2005 and
has remained unemployed since due to depression,
Hepatitis C, and lower back pain caused by a
degenerative disc disease. Pet. App. 3a. Petitioner
applied for social security disability benefits in March
2010, identifying the onset date for his qualifying
disabilities as October 28, 2009. Pet. App. 3a.
After protracted proceedings, an ALJ denied
Petitioner’s application for benefits from October 28,
2009, his alleged onset date, to May 2013. The ALJ found
Petitioner was not engaged in any substantial activity,
had a severe medically determinable physical or mental
impairment, and could not perform his prior work. Pet.
App. 82a-83a, 108a. But the ALJ found Petitioner could
perform other work that was readily available. Pet.
App. 89a-90a, 109a-110a. In making this finding, the
ALJ relied solely on the testimony of a vocational
expert, who opined that Petitioner could perform the
sedentary, unskilled job of a “bench assembler,” with
240,000 jobs nationally and 6,000 jobs in Southeast
Michigan, and a “sorter,” with 120,000 jobs nationally
and 1,500 jobs in Southeast Michigan. Pet. App. 111a,
116a. The vocational expert also opined that the number
of bench assembler and sorter jobs would erode by 20 to
30 percent if the jobs were limited to only those that
16
could be performed under a sedentary exertion level.2
Pet. App. 116a-117a.
At the hearing, Petitioner’s counsel attempted to
cross-examine the vocational expert about the
foundation for her conclusions. The vocational expert
testified that she relied on her “professional
experience,” “job analysis,” and “individual labor market
surveys” in estimating the number of jobs available to
Petitioner, taking into account his individualized
limitations. Pet. App. 117a-119a. But when asked to
provide the “job analysis” and “individual labor market
surveys,” she refused. The expert testified that the
information supporting her conclusions was “part of
people’s private confidential files” or “part of client
files.” Pet App. 118a-119a. When Petitioner’s counsel
suggested the expert redact any confidential
information from her sources, the ALJ interjected, “I’m
not requiring that.” Pet. App. 118a; see also id. 119a.
Petitioner’s counsel was therefore unable to probe
whether the sources that the vocational expert
identified actually supported her testimony on the
number of jobs available to Petitioner. The vocational
expert’s testimony, alone, resulted in the ALJ
determining that Petitioner was not eligible for
disability benefits.3 See Pet. App. 109a-112a.
2
The agency recognizes that some individuals have a residual
functional capacity “for less than a full range of sedentary work.”
SSR 96-9p, 1996 WL 374185, at *1 (July 2, 1996).
3
The ALJ found Petitioner eligible for disability benefits beginning
in May 2013, because his advanced age at that time seriously
impacted his ability to adjust to other work. Pet. App. 112a; see 20
17
On review, the district court upheld the ALJ’s ruling,
concluding substantial evidence supported the finding
that other work was available to Petitioner. The district
court ruled that the vocational expert’s testimony on
this point was sufficient even though the expert refused
to provide any of the data underlying her testimony. See
Pet. App. 28a-30a.
The Sixth Circuit affirmed.
It rejected any
“oblig[ation for] vocational experts to provide the data
and reasoning used in support of their conclusions upon
request.” Pet. App. 21a. The court recognized a circuit
split “between the Seventh Circuit and several other
circuits” on the key issue: whether a vocational expert’s
testimony constitutes substantial evidence of other
work when the expert withholds sources that allegedly
support his or her bottom-line conclusions. Pet. App.
20a. The court reasoned that requiring a vocational
expert to supply the foundation for his or her opinion
would “effectively import a key provision of the Federal
Rules of Evidence into Social Security proceedings.”
Pet. App. 21a. The requirement, the court believed,
would conflict with Congress’s intent to “specifically
exempt[] Social Security disability proceedings from the
strictures of the Federal Rules of Evidence, [and] allow[]
ALJs to consider a broader range of potentially relevant
information than would be admissible in an ordinary
court of law.” Pet. App. 21a.
C.F.R. §§ 404.1563(d), 416.963(d). That determination is not at issue
here.
18
SUMMARY OF ARGUMENT
A vocational expert’s testimony cannot constitute
“substantial evidence” of “other work,” 42 U.S.C.
§ 405(g), if the vocational expert refuses upon request to
provide the data underlying that testimony.
I.A. As this Court held in Richardson v. Perales, 402
U.S. 389 (1971), in a social security hearing, an expert’s
conclusions must have evidentiary support and be
subject to meaningful cross-examination to constitute
“substantial evidence.” Perales also recognized that
when applicants fail to avail themselves of available
processes for probing expert conclusions, they
effectively acquiesce to the substantiality of the
evidence. Perales thus bars an ALJ from refusing an
applicant’s request for data underlying the vocational
expert’s conclusions. Without the underlying data, there
is no way to assess the vocational expert’s evidentiary
support or subject the vocational expert’s conclusions to
even a modicum of meaningful testing through crossexamination. Requiring production only upon request
achieves both of these objectives while preserving
expediency and efficiency in social security proceedings,
as Perales commands.
I.B. The statutory requirement that an agency’s
factual findings be supported by substantial evidence
applies in various other regulatory contexts. This
Court’s decisions in those contexts confirm that
conclusions by agency experts that lack an identifiable
foundation in facts cannot constitute substantial
evidence. Indeed, many cases require the production of
an expert’s underlying data and confirm that an agency
19
decision-maker must be able to test an expert’s
conclusion by reference to the data. Even in the rare
case where this Court has accepted an expert’s
testimony without the provision of first-hand evidence,
the Court’s reasoning underscores this general
requirement.
II.A. Requiring vocational experts to provide upon
request the data underlying their conclusions does not
import the Federal Rules of Evidence or the
requirements of Daubert into social security
proceedings. As exhibited over the past sixteen years in
the Seventh Circuit, this rule is limited in scope and
measured in its impact on the length of hearings and the
burden on both ALJs and vocational experts.
II.B. Although the Federal Rules of Evidence do not
apply in social security hearings, in passing the Social
Security Act, Congress did not eliminate the
fundamental common-law requirement that expert
testimony be reliable before a decision-maker can
rationally rely upon it. The most critical means of
assessing the reliability of an expert’s testimony is
through meaningful cross-examination that tests the
rigor of an expert’s methodology and the legitimacy of
the expert’s data. If the vocational expert withholds the
data upon request, the applicant and the agency lack the
tools necessary to conduct this critical assessment of
reliability.
II.C. A vocational expert’s experience and credibility
do not assure reliable conclusions. Credibility asks
whether an expert is truthful; and, indeed, where
testimony does not rely upon actual data, professional
20
experience may constitute a sufficient basis for an
expert’s conclusions. But reliability asks whether
factual evidence actually supports an expert’s
conclusion. Credibility and experience cannot identify
how many jobs of a particular sort exist in a defined
geographic region at a specific point in time. Underlying
data is necessary to reach this type of a conclusion, and
the provision of this data is thus necessary to assess
whether a vocational expert’s conclusions are actually
grounded in fact.
III. Finally, requiring a vocational expert to provide
the underlying data upon request is consistent with the
agency’s policies and with common sense. The agency
itself, in nonbinding guidance, advises vocational
experts to be prepared to furnish their underlying data
at disability determination hearings, and informs
vocational experts that an ALJ will not rely solely on
their testimony when determining whether “other
work” exists in sufficient numbers. In other guidance,
the agency charges ALJs with analyzing data sources
that are inconsistent with the vocational expert’s
testimony before the ALJ may accept the expert’s
testimony as conclusive. This same rationale should
govern here.
In order to assure that the agency has met its burden
of demonstrating the existence of other work with more
than merely the uncorroborated say-so of a vocational
expert, ALJs should require that the expert’s
underlying data be provided upon request. If the
evidence exists, the vocational expert can efficiently
provide it, as the Seventh Circuit’s rule demonstrates.
If it does not exist, the agency and reviewing court can
21
then probe what possible basis the expert might have for
his or her testimony in the first place.
ARGUMENT
I.
A VOCATIONAL EXPERT’S TESTIMONY
CANNOT CONSTITUTE “SUBSTANTIAL
EVIDENCE” OF “OTHER WORK” UNDER
42 U.S.C. § 405(g) IF THE VOCATIONAL
EXPERT REFUSES TO PROVIDE, UPON
REQUEST, THE DATA UNDERLYING
THAT TESTIMONY.
In interpreting provisions of the Social Security Act,
this Court begins, “as usual, with the statutory text.”
Maslenjak v. United States, 137 S. Ct. 1918, 1924 (2017);
see also Gisbrecht v. Barnhart, 535 U.S. 789, 799 (2002).
The relevant statutory provision here provides “[t]he
findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). Under this Court’s wellestablished precedent, “substantial evidence” requires
more than the say-so of a vocational expert. It requires
reliable expert testimony subject to meaningful probing
by an adverse party or the decision-maker. The Sixth
Circuit’s decision below disregards this requirement.
22
A. Richardson v. Perales Mandates That
Vocational Experts Provide The Data
Underlying Their Conclusions Upon An
Applicant’s Request.
1. Perales identifies various indicia of
reliability that expert testimony must
possess
to
constitute
“substantial
evidence” under § 405(g).
In Richardson v. Perales, this Court considered the
precise question of what “substantial evidence” requires
for expert evidence introduced at disability hearings.
402 U.S. at 401. In approaching this question, the Court
emphasized that the standards governing disability
determinations “should be understandable to the layman
applicant, should not necessarily be stiff and comfortable
only for the trained attorney, and should be liberal and
not strict in tone and operation.” Id. 400-01. Consistent
with “the obvious intent of Congress,” hearings should
be “informal rather than formal”—“so long as the
procedures are fundamentally fair.” Id.
Cognizant of the requirements that social security
benefits proceedings be efficient, accessible, and fair, the
Court determined that “substantial evidence” in this
context means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Id. at 401 (quoting Consolidated Edison Co. of N.Y. v.
NLRB, 305 U.S. 197, 230 (1938)). Material presented to
the agency “without a basis in evidence having rational
probative force” cannot constitute “substantial
evidence.” Perales, 402 U.S. at 407 (internal quotation
marks omitted).
23
The Court then applied this standard to the expert
evidence introduced at the applicant’s hearing. The
applicant in Perales challenged written reports
submitted by four licensed physicians who had examined
the applicant but who did not testify at the hearing. The
applicant argued that the written reports could not
constitute “substantial evidence” because none of the
physicians were cross-examined and because the only
live testimony presented at the hearing contradicted the
written reports and supported his claim. This Court
rejected the argument, highlighting “a number of factors
that, we feel, assure [the] underlying reliability and
probative value” of the challenged expert evidence. Id.
at 402. Two of those considerations have particular
relevance here.
First, the Court emphasized the robust evidentiary
foundation for the expert reports. The Court explained
“[t]he particular reports of the physicians who examined
claimant Perales were based on personal consultation
and personal examination and rested on accepted
medical procedure.” Id. at 403. The reports reflected an
“impressive range of examination” by experts in
different specialties, including “a patient and careful
endeavor by the state agency and the examiner to
ascertain the truth.” Id. at 404. In the reports, the
experts carefully detailed their examinations, providing
not only their bottom-line conclusions on disability but
also the results of specific tests they performed to reach
those results. Id. at 403-04. The medical reports in
Perales thus afforded the hearing examiner, and the
reviewing courts, the opportunity to evaluate whether
the doctors’ diagnoses logically flowed from the
examinations upon which they were based. Buttressing
24
the Court’s confidence in the reports’ conclusions was
the lack of any “inconsistency whatsoever in the
reports,” despite the fact that “each result was reached
by independent examination in the writer’s field of
specialized training.” Id. at 404.
Second, in assessing whether “substantial evidence”
supported the ALJ’s finding, the Court found salient
that the applicant had failed to avail himself of
procedures for testing the “reliability and probative
value” of expert evidence in disability hearings. Id. at
402. The Court noted that although the applicant
complained of not being able to “cross-examine the
reporting
physicians”
whose
written
reports
contributed to the ALJ’s adverse determination, the
applicant had failed to take advantage of the procedure
that would have afforded him that very opportunity:
asking the ALJ to issue subpoenas for the appearance
and testimony of the physicians. Id. at 404-05; 20 C.F.R.
§ 404.950(d).4 Because the physicians were subject to
subpoena and cross-examination, relying on their
reports did not diminish the “integrity” or “fairness” of
the hearing. And because the applicant did not pursue
his opportunity to subpoena and cross-examine the
witnesses, the applicant could not “complain[] that he
was denied the rights of confrontation and crossexamination.” Perales, 402 U.S. at 405; see also id. at
402.
4
At the time that Perales was decided, 20 C.F.R. § 404.926 allowed
ALJs and members of the Appeals Council to issue subpoenas on
their own initiative or on request of either party. That regulation
was moved in 1980 to 20 C.F.R. § 404.950(d), but its substance
remains the same.
25
Perales thus demonstrates the contours of
“substantial evidence” in social security proceedings.
Expert testimony cannot be “substantial evidence” if
there is no viable means of verifying whether the
testimony is reliable. That verification is best facilitated
by making the underlying data available to the applicant
and permitting the applicant to test the data and
conclusions drawn from the data through crossexamination. But Perales also recognizes that an
applicant may acquiesce to the reliability of expert
testimony by declining to challenge reliability in agency
proceedings. What Perales does not permit, however, is
deeming expert testimony “substantial evidence” when
there is no means of verifying the evidence upon which
the testimony is based, and an applicant does not
acquiesce to the reliability of the testimony. Yet that is
precisely what the Sixth Circuit countenanced below.
2. Under Perales, the testimony of a
vocational
expert
cannot
constitute
substantial evidence when an expert
withholds the data upon which the
testimony is based.
The Sixth Circuit’s approach conflicts with Perales in
two important ways. First, a court cannot test the
factual predicates for an expert’s conclusions when the
expert withholds the underlying data. In the opinion
below, the Sixth Circuit found substantial evidence of
the number of jobs available to Petitioner (including the
vocational expert’s subsequent reduction of those
numbers “by about 20 to 30 percent” in response to a
hypothetical question by the ALJ) based solely upon the
say-so of the vocational expert. Pet. App. 117a. The
26
expert purported to rely in part on her “individual labor
market surveys,” but she refused to provide these
sources. Pet. App. 119a. As a result, neither Petitioner
nor the ALJ could determine whether the expert’s
underlying data were “such . . . as a reasonable mind
might accept as adequate to support [the expert’s]
conclusion.” Perales, 402 U.S. at 401 (internal quotation
marks omitted). The reliability of the vocational
expert’s conclusions was therefore unknowable, in
contrast to the medical reports in Perales, which had
substantial and articulable support. As such, the ALJ’s
conclusion regarding other work available to Petitioner
was based on little more than “uncorroborated hearsay.”
Consolidated Edison Co. of N.Y. v. NLRB, 305 U.S. 197,
230 (1938); see also Chavez v. Berryhill, 895 F.3d 962, 969
(7th Cir. 2018) (“What is entirely lacking is any
testimony from the VE explaining why he had a
reasonable degree of confidence in his estimates. . . . The
absence of any such testimony left the ALJ without any
reasoned and principled basis for accepting the jobnumber estimates.”); Barrett v. Barnhart, 355 F.3d 1065,
1067 (7th Cir. 2004) (“For [the vocational expert] to offer
the number 24,500 with no indication of how he adjusted
the numbers in the dictionary to reflect Barrett’s
diminished capacity leaves us in the dark about the
actual basis of his testimony.”). Without underlying
data, applicants “have little to no meaningful
opportunity to challenge the methodological or empirical
reliability of vocational expert testimony.” Carolyn A.
Kubitschek & Jon C. Dubin, Social Security Disability:
Law & Procedure in Federal Court § 3:106, Westlaw
(Apr. 2018 Update).
27
For much the same reason, permitting a vocational
expert to withhold underlying data renders it impossible
to assess whether the vocational expert’s conclusions
regarding jobs numbers are even consistent with the
very sources upon which the expert claims to rely. By
denying an applicant access to the data source or sources
upon which a vocational expert has relied, an ALJ
insulates the expert’s testimony from any analysis of
internal inconsistencies. Indeed, here the vocational
expert identified two sources of data upon which her
analysis was based—“the Bureau of Labor Statistics as
well as [her] own individual labor market surveys.” Pet.
App. 119a. If the various sources relied upon by the
vocational expert conflict, the expert’s testimony alone
cannot constitute substantial evidence. See Perales, 402
U.S. at 404. Yet by preventing any evaluation of what
an expert’s data actually reveal, the Sixth Circuit’s
decision countenances exactly this result.
Second, unlike the applicant in Perales, Petitioner
specifically sought to avail himself of the mechanism
open to him for effectively probing the expert’s
conclusion: requesting the underlying data during crossexamination. See Pet. App. 20a. Although Petitioner’s
counsel had the opportunity to question the vocational
expert, without the data upon which the expert’s
testimony rested, he could not test whether the
vocational expert’s conclusions were based on anything
more than the “suspicion of the existence of the fact to
be established.” NLRB v. Columbian Enameling &
Stamping Co., 306 U.S. 292, 300 (1939). Lack of the
requested data did not merely hamper Petitioner at
cross-examination; it also meant the ALJ reached a
conclusion based solely on the say-so of the expert
28
without even reference to, let alone analysis of, the
“labor market studies” the expert claimed as part of the
basis for her conclusions. Perales requires the opposite
result when an applicant takes advantage of the
available mechanisms for testing an expert’s reliability.
3. Requiring vocational experts to provide
upon request the data underlying their
testimony satisfies the indicia of reliability
identified in Perales.
Requiring a vocational expert to provide underlying
data upon request vindicates this Court’s holding in
Perales. Recognizing that “an ALJ’s findings must be
supported by substantial evidence,” the Seventh Circuit
has noted “an ALJ may depend upon expert testimony
only if the testimony is reliable.” McKinnie v. Barnhart,
368 F.3d 907, 910 (7th Cir. 2004) (per curiam). Thus,
when an applicant seeks to understand the basis for a
vocational expert’s conclusions regarding “other work,”
the applicant can cross-examine the expert—“an
approach deemed adequate in Richardson v. Perales.”
Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002).
While a vocational expert is “‘free to give a bottom line,’”
during this examination, “the data and reasoning
underlying that bottom line must be ‘available on
demand’ if the applicant challenges the foundation of the
vocational expert’s opinions.” McKinnie, 368 F.3d at 911
(quoting Donahue, 279 F.3d at 446).
Thus, in McKinnie, an expert provided estimates for
the number of jobs available to the applicant in the
regional economy, but “did not substantiate her findings
with a written report or other documentation to
substantiate her figures,” and provided “vague
29
responses to McKinnie’s questioning.” Id. As a result,
the court found the agency had failed to establish by
substantial evidence “the existence of a significant
number of jobs that the claimant can perform.” Id.
Yet—again like Perales—“[w]hen no one questions
the vocational expert’s foundation or reasoning, an ALJ
is entitled to accept the vocational expert’s conclusion.”
Donahue, 279 F.3d at 446. Thus, in Barrett v. Barnhart,
355 F.3d 1065 (7th Cir. 2004), although the court was left
“in the dark” as to the basis for the expert’s conclusion
regarding the number of jobs available to the applicant,
any objection was “forfeited” because the applicant’s
lawyer “did not question the basis for the vocational
expert’s testimony, purely conclusory though that
testimony was.” 355 F.3d at 1067.
Requiring the production of underlying data upon
request thus combines the requirement that an ALJ’s
conclusion be based on substantial evidence, not mere
say-so, with Perales’s instruction that an applicant
cannot attack the substantiality of an expert’s
conclusions when the applicant fails before the agency to
take advantage of the procedural mechanisms available
for probing those conclusions. See Shaibi v. Berryhill,
883 F.3d 1102, 1109 (9th Cir. 2017) (“[W]hen a claimant
fails entirely to challenge a vocational expert’s job
numbers during administrative proceedings before the
agency, the claimant forfeits such a challenge on appeal,
at least when that claimant is represented by counsel.”).
This rule achieves precisely the balance between
procedures that are “liberal and not strict in tone” and
yet “fundamentally fair,” that this Court recognized as
30
the “obvious intent of Congress” in the Social Security
Act. Perales, 402 U.S. at 400-01.
B. This Court’s Rulings In Other Administrative
Contexts
Confirm
That
“Substantial
Evidence” Requires Experts To Provide
Upon Request The Data Underlying Their
Testimony.
In elucidating the contours of the “substantial
evidence” standard, Perales cited to this Court’s
interpretation of that phrase in a variety of regulatory
contexts.
See Perales, 402 U.S. at 401 (citing
Consolidated Edison Co., 305 U.S. 197, and Universal
Camera Corp. v. NLRB, 340 U.S. 474 (1951), applying
the National Labor Relations Act, and Consolo v.
Federal Maritime Commission, 383 U.S. 607 (1966),
applying the Administrative Procedure Act). As this
Court has recognized, “[t]he statutory phrase
‘substantial evidence’ is a ‘term of art’ in administrative
law that describes how an administrative record is to be
judged by a reviewing court.” T-Mobile S., L.L.C. v. City
of Roswell, 135 S. Ct. 808, 815 (2015) (quoting United
States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963)).
When interpreting the term “substantial evidence” in
the Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56, the Court found “no reason discernable
from the text of the Act to think that Congress meant to
use the phrase in a different way” than in other
provisions setting the standards for judicial review of
agency action. T-Mobile S., 135 S. Ct. at 815. The same
is true here. Congress intended “substantial evidence”
in the Social Security Act to provide the same
substantive and procedural protections during judicial
31
review that exist in other agency contexts. H.R. Rep.
No. 76-728, at 43; S. Rep. No. 76-734, at 52; see also H.R.
Rep. No. 94-679, at 2-3. This Court thus can and should
look to analogous administrative contexts where an
agency’s findings must be supported by substantial
evidence to survive judicial review.
Of greatest relevance here, this Court has urged
special caution when finding “substantial evidence”
based on expert testimony. In Baltimore & Ohio
Railroad Co. v. Aberdeen & Rockfish Railroad Co.
(“Baltimore & O. R.R. Co.”), 393 U.S. 87 (1968), this
Court held that the Interstate Commerce Commission’s
allocation of revenue between Southern and Northern
rail lines was not supported by substantial evidence.
Specifically, the Court faulted the Commission for using
the Northern rail lines’ blended average costs as a basis
for allocating revenues when 80% of the Northern rail
lines’ traffic was solely within the North, and it was
“difficult to maintain that these intraterritorial
Northern costs are the same or approximately the same
as the Northern costs in handling traffic between North
and South.” Id. at 90. Crediting the Board’s use of the
average costs, this Court found, “would in effect be
saying that the expertise of the Commission is so great
that when it says average territorial costs fairly
represent the costs of North-South traffic, the
controversy is at an end, even though the record does
not reveal what the nature of that North-South traffic
is.” Id. at 91-92. Acceptance of this characterization of
the facts, this Court found, would render the
requirement that the Commission’s actions be “based on
substantial evidence . . . lost in the haze of so-called
expertise.” Id. at 92.
32
The very same danger exists here.
While
“[p]recision and exactitude in the mathematical sense”
may not be possible in a vocational expert’s estimate of
various job categories in the national economy, that is a
far cry from saying that the agency can satisfy its burden
of demonstrating other work on the testimony of the
expert alone. Id. Accepting the expert’s testimony in
this regard—particularly when challenged by the
applicant—would, like Baltimore & O. R.R. Co.,
improperly assume administrative expertise at the cost
of actual evidence. See also Dickinson v. Zurko, 527
U.S. 150, 162 (1999) (recognizing that, in defining
substantial evidence review, “the Court has stressed the
importance of not simply rubber-stamping agency
factfinding”).
In other administrative contexts, this Court has
noted that substantial evidence “afford[s] a substantial
basis of fact from which the fact in issue can be
reasonably inferred.”
Columbian Enameling &
Stamping Co., 306 U.S. at 299. Thus, in Columbian
Enameling, the Court held that substantial evidence did
not support the National Labor Relations Board’s
conclusion that an employer had improperly refused to
bargain collectively with its employees. In finding the
Board’s conclusion not adequately supported, the Court
noted a crucial fact was missing from the Board’s record.
Although the deficiency was “pointedly bought to the
attention of the Board . . . no attempt was made to
supply the omission.” Id. at 298. As a result, the Board’s
decision on this significant point rested on a “matter of
conjecture” that the Court deemed insufficient to satisfy
the substantial evidence standard. Id. at 299, 300.
33
As seen in the opinion below, permitting reliance on
expert testimony despite the applicant’s request for
underlying data countenances almost precisely the error
this Court identified in Columbian Enameling. The
Sixth Circuit recognized that Petitioner requested the
data underlying the expert’s opinion and argued that
“little substantiates the reliability of the vocational
expert’s testimony other than her word,” such that it
“falls short of ‘substantial evidence.’” Pet. App. 20a. Yet
despite having pointed out to the agency an “omission”
in the record that constrained the agency to rely on the
expert’s “conjecture” alone rather than substantial
evidence, the Sixth Circuit nonetheless affirmed the
agency’s finding. Columbian Enameling requires
otherwise. Columbian Enameling, 306 U.S. at 299-300.
Equally elucidating is the rare case in which this
Court has found an agency’s decision supported by
substantial evidence when the decision was based on
expert testimony alone. In Federal Power Commission
v. Florida Power & Light Co. (“FP&L”), 404 U.S. 453,
462-463 (1972), this Court reversed the Fifth Circuit and
held the Federal Power Commission had jurisdiction
over the respondent because the respondent was
engaged in the transmission of electric energy in
interstate commerce.
The Court noted that the
Commission had accepted the testimony of an expert
regarding the transmission of power, even though “[t]he
elusive nature of electrons renders experimental
evidence that might draw the fine distinctions required
by this case practically unobtainable.” Id. at 466-67.
Nonetheless, the expert’s testimony was “probed, and in
our opinion not undercut, by the hearing examiner’s
questions . . . [and] cross-examination.” Id. at 463 Thus,
34
the Court held, “well-reasoned expert testimony—based
on what is known and uncontradicted by empirical
evidence—may in and of itself be ‘substantial evidence’
when first-hand evidence on the question (in this case
how electricity moves within a bus) is unavailable.” Id.
at 464-65. FP&L is instructive because it demonstrates
the type of situation—when actual evidence simply does
not exist but well-reasoned expert testimony is
uncontradicted—in which substantial evidence can be
found based on an expert’s (or multiple experts’)
testimony alone.
This is vastly different from the case here, in which
an expert makes a statement, acknowledges under
questioning that the statement is based on first-hand
evidence in the expert’s possession, but then refuses to
share that evidence. FP&L declined to require an
expert to conduct the type of studies that, “if they are
feasible at all—would take one or two years to conduct,”
in order for the agency to rely upon the expert’s
testimony. Id. at 467-68. But that is entirely different
than requiring an expert to produce upon request a
study the expert already conducted and upon which
they explicitly base their testimony. Id.
II.
35
FINDING AN EXPERT’S TESTIMONY,
ALONE,
TO
BE
SUBSTANTIAL
EVIDENCE
IGNORES
THE
REQUIREMENT THAT TESTMIONY BE
RELIABLE, AND CONFLATES THE
CREDIBILITY OF AN EXPERT WITH
THE RELIABILITY OF THE EXPERT’S
EVIDENCE.
Courts, like the Sixth Circuit, that consider a
vocational expert’s say-so to be substantial evidence,
notwithstanding a challenge from the applicant, have
done so for three misguided reasons.
First, these courts note that “[e]vidence may be
received at any hearing before the Commissioner of
Social Security even though inadmissible under rules of
evidence applicable to court procedure.” 42 U.S.C.
§ 405(b)(1).
They then conclude that requiring
vocational experts to provide upon request the data
underlying their testimony would violate § 405(b)(1) by
“effectively import[ing] a key provision of the Federal
Rules of Evidence into Social Security proceedings.”
Pet. App. 21a. These courts likewise criticize the
Seventh Circuit for “acknowledg[ing] . . . that ALJs are
not bound by the Rules of Evidence, but then turn[ing]
around and requir[ing] ALJs to hew so closely to
Daubert’s principles.” Brault, 683 F.3d at 449; Purdy v.
Berryhill, 887 F.3d 7, 16 (1st Cir. 2018); Welsh v. Comm’r
Soc. Sec., 662 F. App’x 105, 109 (3d Cir. 2016). But as
seen in the Seventh Circuit, requiring the production of
underlying data does not apply a Daubert-like standard
that would determine whether a vocational expert’s
testimony is admissible in the first place. Vocational
36
experts in the Seventh Circuit can and do testify without
any Daubert-like gatekeeping procedure to assess their
qualifications. Moreover, hearings within the Seventh
Circuit are not constrained by the myriad procedural
and substantive rules applicable to experts in civil
litigation.
Second, courts that reject the Seventh Circuit’s
approach ignore that in choosing not to apply the
Federal Rules of Evidence to social security
proceedings, Congress did not jettison the common-law
rule that an expert’s testimony must be reliable. That
common law requirement has always governed a
decision-maker’s acceptance of expert testimony,
including in the administrative context. Access to the
data underlying an expert’s testimony, if requested, is a
critical means of ensuring this reliability.
Third, the Sixth Circuit and the courts that agree
with it conflate reliability and credibility. In rejecting
the Seventh Circuit’s approach, the Sixth Circuit noted
that ALJs “carefully weigh the credibility of witnesses
who testify,” and thus their “acceptance of [that]
testimony cannot be said to have been improper.” Pet.
App. 22a (quoting Sias v. Sec’y of Health & Human
Servs., 861 F.2d 475, 481 (6th Cir. 1988)). But the
“credibility” of a vocational expert is a red herring. An
expert may be credible in the sense that the expert has
no bias, is truthful, and demonstrates sufficient
experience and education. But those attributes have
little bearing on whether an expert’s testimony
regarding a specific number of jobs, in a specific region,
at a specific time, is reliable. That inquiry does not
concern an expert’s credibility, but turns instead on the
37
accuracy of the underlying data and the rationality and
rigor of the analysis. Reliability and credibility are
simply not the same thing. While an expert’s general
credibility is important, it does not demonstrate that
specific conclusions are reliable and supply the requisite
“substantial evidence” to give a factual finding
conclusive effect on judicial review. See, e.g., Pet. App.
22a (“[I]t is undoubtedly true that vocational expert
testimony that is ‘conjured out of whole cloth’ cannot be
considered substantial evidence.”); Brault, 683 F.3d at
450 (“[W]e agree with the Seventh Circuit that evidence
cannot be substantial if it is ‘conjured out of whole
cloth.’” (internal citation omitted)).
A. Requiring vocational experts to provide upon
request the data underlying their conclusions
does not import the Federal Rules of
Evidence into social security hearings.
It is undisputed that “strict rules of evidence,
applicable in the courtroom, are not to operate at social
security hearings so as to bar the admission of evidence
otherwise pertinent.” Perales, 402 U.S. at 400; 42 U.S.C.
§ 405(b)(1). But the Second and Sixth Circuits are
simply wrong when they claim the Seventh Circuit’s
approach “acknowledge[d] in Donahue that ALJs are
not bound by the Rules of Evidence, but then . . .
require[d] ALJs to hew so closely to [them].” Pet. App.
21a (quoting Brault, 683 F.3d at 449).
A brief
comparison of the requirements of the federal rules that
govern the testimony of experts in courtrooms with the
rules governing the testimony of vocational experts
within the Seventh Circuit makes this point clear.
38
Once an expert has satisfied the various disclosure
requirements laid out in Rule 26 of the Federal Rules of
Civil Procedure—none of which of course apply here—
an expert’s proffered testimony is next subjected to
various tests imposed by the Federal Rules of Evidence
and this Court’s interpretations of those rules.
Specifically, Daubert and Kumho Tire require the trial
court to play “a gatekeeping role” for expert testimony.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597
(1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14142 (1999). The trial court measures the expert’s
proffered testimony against Rule 702 to “ensur[e] that
an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.” Daubert, 509 U.S.
at 597. If the expert clears that hurdle, the expert may
testify at trial. If an expert does not clear the Daubert
hurdle, evidence from that expert is inadmissible at trial.
See, e.g., In re Zoloft (Sertraline Hydrochloride) Prods.
Liab. Litig., 858 F.3d 787, 797 (3d Cir. 2017) (“[A]ny step
that renders the analysis unreliable under the Daubert
factors renders the expert’s testimony inadmissible.”
(internal quotation marks omitted)). Even if an expert
surmounts Daubert, any testimony received at trial is
subject to various limitations set forth in the Federal
Rules of Evidence and can be attacked through
“[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof,”
aided by voluminous pretrial disclosures. Daubert, 509
U.S. at 595-96.
As seen in the Seventh Circuit, requiring underlying
data from vocational experts upon request imports none
of these requirements. The Seventh Circuit has
39
expressly recognized that “Rule 702 does not apply to
disability adjudications,” which it properly characterizes
as “a hybrid between the adversarial and the
inquisitorial models.” Donahue, 279 F.3d at 446 (citing
Perales, 402 U.S. 389). Thus, unlike under Daubert and
Rule 702, there is no preliminary hearing prior to a
vocational expert’s testimony, let alone a requirement
that an expert produce a report or summary in advance
of testifying that details the expert’s experience,
compensation, conclusions, and factual support.
Moreover, vocational experts testifying in social
security disability hearings within the Seventh Circuit
are subject to none of the requirements of the Federal
Rules of Evidence. And social security proceedings in
the Seventh Circuit are unburdened by the
requirements of the Federal Rules of Evidence in
myriad ways, from reliance on hearsay testimony, see
Perales, 402 U.S. at 402 (permitting reliance on hearsay
written reports); Binion ex rel. Binion v. Chater, 108
F.3d 780, 788 n.5 (7th Cir. 1997), to an ALJ’s
consideration of evidence from outside the record, see
Adkins v. Astrue, 226 F. App’x 600, 606-07 (7th Cir.
2007) (rejecting claimant’s argument that ALJ violated
Federal Rules of Evidence when considering medical
reference text outside of the record).
It is thus no surprise that in the sixteen years since
Donahue, social security hearings within the Seventh
Circuit have not turned into mini-trials. They have
instead retained all of the efficiency and informality
Congress envisioned. Under the Seventh Circuit’s
approach, the vocational expert need only make the data
underlying the expert’s testimony “available on demand
40
to facilitate cross-examination and testing of the VE’s
reliability.” Britton v. Astrue, 521 F.3d 799, 804 (7th Cir.
2008). This approach does not “endorse a system that
drags out every Social Security hearing to an
interminable length.” Id. Instead, it requires the expert
to provide the data only if asked to do so and only at the
hearing itself. Moreover, ALJs are careful to require
vocational experts to provide only the precise data upon
which they rely, and nothing more. See id. at 802, 804.
And the Seventh Circuit has ensured that its rules do
not render every proceeding “impossibly long.” Id. It
has achieved this result by suggesting that applicants
will question the expert about the data at the same
hearing where the expert supplies it, perhaps with the
benefit of a “brief recess[]” as necessary for review. Id.
The Seventh Circuit’s standard does not entitle the
applicant to prehearing disclosures, nor does it obligate
the ALJ to schedule supplemental proceedings. It
simply requires that the vocational expert come to the
hearing prepared to furnish and discuss the foundation
for his or her conclusions and that the applicant or
applicant’s representative be given the opportunity to
meaningfully inquire into the validity of the data and
their connection to the expert’s conclusions.
Lower courts have applied this straightforward rule
without upsetting the balance it strikes. In cases where
ALJs do not enforce the rule, lower courts reverse and
remand. See, e.g., Powell v. Colvin, No. 1:13-CV-51, 2014
WL 1643313, at *14-15 (N.D. Ind. Apr. 22, 2014);
Reynolds v. Astrue, No. 09-C-0537, 2010 WL 2900356, at
*4 (E.D. Wis. July 21, 2010). But courts have likewise
recognized the rule’s limitations and rejected arguments
41
that seek to broaden its application. See, e.g., Khuzaie v.
Comm’r of Soc. Sec., No. 1:14-CV-00199-SLC, 2016 WL
1253537, at *15 (N.D. Ind. Mar. 30, 2016) (rejecting
argument that expert was required to provide data
where applicant failed to request it); Ronning v. Colvin,
No. 13 CV 8194, 2015 WL 1912157, at *9 (N.D. Ill. Apr.
27, 2015) (rejecting argument that expert failed to
support her testimony where she identified specific
sources of data, explained her methodology, and was
able on cross-examination to reconcile and explain
differences between figures).
This real-world experience belies the notion that the
Seventh Circuit has imported the Federal Rules of
Evidence or Daubert into social security proceedings.
The Seventh Circuit’s rule “increases the . . . reliability
of the evaluation process” without compromising
efficiency. Bowen v. Yuckert, 482 U.S. 137, 153 (1987).
That is exactly what procedural mechanisms within the
Social Security context should achieve. Id.
B. Expert
testimony
in
administrative
proceedings must be reliable, and this Court
has recognized that reliability is best assured
through cross-examination of the data and
methodology resulting in the expert’s
conclusions.
The courts that do not require a vocational expert’s
underlying data upon request err in another important
way. Even though the Federal Rules of Evidence do not
apply in social security hearings, vocational expert
testimony must still be reliable in order for an ALJ’s
reliance on that testimony to constitute substantial
42
evidence. This requirement of expert reliability has long
existed in administrative law, and derives from common
law principles that continue to animate judicial review of
expert testimony. Reliability cannot be vindicated
effectively without meaningful cross-examination of the
expert, which in turn requires the expert to supply the
foundation for his or her testimony if the applicant
requests it.
In Perales this Court’s inquiry into whether the
medical reports could constitute “substantial evidence”
focused on the reports’ “underlying reliability.” Perales,
402 U.S. at 402. As discussed above, the Court examined
numerous aspects of the reports’ content and the
procedures available to the applicants to challenge them.
See Part I.A.1, supra. The Court also examined more
broadly the various contexts in which this form of expert
testimony had been deemed reliable. See Perales, 402
U.S. at 403-04 (noting that written medical reports had
been deemed reliable in civil litigation and judicial
review of social security hearings). Likewise, in Marsh
v. Oregon Natural Resources Council, 490 U.S. 360
(1989), the Court emphasized—while reviewing an
agency’s decision to ensure, inter alia, that it was based
upon substantial evidence, see id. 375 n.21—that while
“an agency must have discretion to rely on the
reasonable opinions of its own qualified experts . . .
courts should not automatically defer to the agency’s
express reliance on an interest in finality without
carefully reviewing the record and satisfying
themselves that the agency has made a reasoned
decision based on its evaluation of the significance—or
lack of significance” of the information in the record, id.
43
at 378. Marsh, again, emphasizes that part and parcel of
the substantial evidence inquiry is an examination of
whether an expert’s testimony is sufficiently reliable to
be accepted.
Following this Court’s lead, the courts of appeals
have stressed the importance of reliability when
assessing an agency’s use of expert evidence in
administrative proceedings. For example, in United
States Steel Mining Co. v. Director, Office of Workers’
Compensation Programs, 187 F.3d 384, 386 (4th Cir.
1999), the Fourth Circuit reversed the Department of
Labor’s determination that an individual qualified for
survivors’ benefits under the Black Lung Benefits Act.
In reviewing the evidence relied upon by the agency, the
court explained “in an agency proceeding the gate
keeping function to evaluate evidence occurs when the
evidence is considered in decision[-]making rather than
when the evidence is admitted.” Id. at 389. But this
evaluation must nonetheless occur because “[a]bsent
such a discipline to qualify evidence, administrative
findings and orders could unacceptably rest on
suspicions, surmise, and speculation.” Id. Setting aside
the speculative opinion of an expert, “the ALJ was
without any evidence upon which to base a finding,” and
the court deemed the agency’s determination
unsupported by substantial evidence. Id. at 391; see also
Britton, 521 F.3d at 803 (“A finding based on unreliable
VE testimony is equivalent to a finding that is not
supported by substantial evidence and must be
vacated.”).
That courts require agencies to rely upon reliable
experts—even absent the application of the Federal
44
Rules of Evidence—is no surprise in light of the
“common law[’s] insistence upon ‘the most reliable
sources of information.’” Daubert, 509 U.S. at 592
(quoting Advisory Committee’s Notes on Fed. Rule
Evid. 602, 28 U.S.C. App., p. 755); see also 1 McCormick
On Evidence § 10 (Kenneth S. Broun ed., 7th ed. 2013)
(noting the common law is “exacting in its insistence on
the most reliable sources of information”); see Albert S.
Osborn, Reasons and Reasoning in Expert Testimony,
2 L. & Contemp. Problems 488, 488 (1935) (noting that
“expert testimony that [is] not susceptible of illustration
and explanation so as to be weighed by the ordinary
hearer . . . is the class of testimony that can be rendered
almost valueless in case of conflict and in many instances
deserves the severest criticism. A bare opinion is a
dangerous basis for a verdict”). Indeed, treatises dating
back to 1777 recognized, “the first, therefore, and most
signal Rule in Relation to Evidence, is this, That a Man
must have the utmost Evidence, the nature of the Fact
is capable of: For the Design of the Law is come to legal
Demonstration in Matters of Right, and there can be no
Demonstration of a Fact without the best Evidence that
the Nature of the Thing is capable of.” Geoffrey Gilbert,
The Law of Evidence at 4 (4th ed. 1777). Rule 702
“relax[e]d the traditional barriers to ‘opinion’
testimony” at common law. Daubert, 509 U.S. at 588
(internal quotation marks omitted). But nothing in Rule
702, or this Court’s decisions regarding the use of
experts in either civil litigation or administrative
proceedings, suggests that reliability is no longer the
touchstone when determining whether expert
testimony should be relied upon in establishing a fact
upon which a decision-maker relies.
45
The ability to conduct probing cross-examination of
an expert has long been understood by this Court as a
critical means of assuring that an expert’s testimony is,
in fact, reliable. See id. at 596 (“Vigorous crossexamination, presentation of contrary evidence, and
careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky
but admissible evidence.”); Perales, 402 U.S. at 410
(recognizing that “cross-examination as may be required
for a full and true disclosure of the facts” is integral to
the “integrity and fundamental fairness” of
proceedings”); Melendez-Diaz v. Massachusetts, 557
U.S. 305, 320 (2009) (“Like expert witnesses generally,
an analyst’s lack of proper training or deficiency in
judgment may be disclosed in cross-examination.”); see
also Stephan Landsman, Of Witches, Madmen, and
Products Liability: An Historical Survey of the Use of
Expert Testimony, 13 Behav. Sci. & L. 131, 139-40 (1995)
(noting that in the 1800s, the advent of “[l]awyer crossexamination exposed weaknesses and uncertainties that
had been previously unexplored [in expert testimony]”).
Rejecting an applicant’s request for access to the
data that vocational experts identify as the basis for
their testimony renders cross-examination effectively
meaningless. “The age-old tool for ferreting out truth in
the trial process is the right to cross-examination,”
which remains a hallmark for “testing the facts offered
by the defendant on direct.” Perry v. Leeke, 488 U.S.
272, 283 n.7 (1989) (internal quotation marks omitted).
And as several courts have recognized, “it is important
to the proper cross-examination of an expert witness
that the adverse party be aware of the facts underlying
46
the expert’s opinions, including whether the expert
made an independent evaluation of those facts, or
whether he instead adopted the opinions of the lawyers
that retained him.” Elm Grove Coal Co. v. Dir., Office
of Workers’ Comp. Programs, 480 F.3d 278, 301 (4th Cir.
2007). With no access to underlying data, an applicant
cannot probe the basic question—fundamental to
assessing an expert’s reliability—of whether the
expert’s conclusions flow from a coherent analysis of
reliable data sources. In turn, an ALJ who finds “other
work” available to an applicant on that testimony alone
has little means of assuring that the expert’s testimony
reliably supports that finding.
This problem is hardly theoretical. An undisclosed
“confidential labor market survey,” such as that cited by
the vocational expert here, permits no verification that
an individual allegedly placed at a job had the same
limitations as the hypothetical individual described by
the ALJ. In situations where an applicant’s specific or
unique limitations may be the exact reason why a certain
job is in fact not viable, an ALJ’s acceptance of
undisclosed data on this critical fact may result in
exactly the unreliable conclusion the substantial
evidence standard is intended to protect against.
Likewise, particular employers may have unique or
atypical jobs that do not more broadly represent the
opportunities available within DOT-defined job
categories. The fact that one employer, in one location,
at one time, may have employed an individual with a set
of limitations—or that in an unverified time period a
particular job could be performed notwithstanding
certain limitations—provides almost no means of
47
verifying that jobs currently available to an applicant
exist in various regions in the country or within the
national economy. And, even if an employer hired an
individual with certain limitations, that single data point,
alone, does not demonstrate that the individual was able
to keep the job past an initial probationary or training
period.
Vocational expert testimony based on
undisclosed private surveys cannot fulfill the
government’s burden in this regard.
Indeed, the problem is more acute still. In a situation
like Petitioner’s, not only is the applicant denied a means
of showing (if it is the case) that the expert’s conclusions
are not supported by the underlying evidence, but an
ALJ’s perception of the reliability of an expert’s
testimony could well be enhanced because of the
expert’s citation to sources the expert nonetheless
withholds. See, e.g., United States v. Downing, 753 F.2d
1224, 1239 (3d Cir. 1985) (recognizing that “[t]he danger
that scientific evidence will mislead the [factfinder]
might be greater, for example, where the [factfinder] is
not presented with the data on which the expert relies,
but must instead accept the expert’s assertions as to the
accuracy of his conclusions”); United States v. Fosher,
590 F.2d 381, 383 (1st Cir. 1979) (describing a common
concern among courts that technical expert testimony
poses “substantial danger of undue prejudice and
confusion because of its aura of special reliability and
trustworthiness”). Even the Sixth Circuit recognizes
that vocational experts cannot conjure their opinions out
of whole cloth. But ALJs and reviewing courts have no
way to eliminate that very possibility when an expert
withholds the foundation for his or her testimony.
48
The agency’s suggestion that an applicant might
“tender his own evidence . . . [or] submit evidence that
contradicted [the vocational expert’s] estimates,” is no
solution to this problem. BIO 13. For one, it is the
agency’s burden to show the existence of other work by
substantial evidence. The burden of proof shifts to the
agency at step five “in express recognition of the
manifest unfairness of requiring disabled, unemployed,
mostly lower income applicants to prove a broad
negative proposition about the absence of suitable
alternative work in the labor market.” Overcoming
Gridlock, 62 Admin. L. Rev. at 964. Indeed, “[t]hat even
the agency has openly acknowledged these fairness
considerations in its burden of proof regulations further
counsels against re[-]shifting this burden back to
applicants.” Id. (footnote omitted).
In addition, even were predominantly pro se
applicants5 able to surmount the substantial costs and
practical difficulties in hiring their own vocational
experts, a battle of experts is precisely the opposite of
the efficient, cost-effective, and informal administrative
scheme that Congress envisioned.
The Seventh
Circuit’s rule eliminates the need for inefficient and
5
“[A] large portion of Social Security claimants either have no
representation at all or are represented by non-attorneys.” Sims v.
Apfel, 530 U.S. 103, 112 (2000). See Soc. Sec. Advisory Board, Filing
for Social Security Benefits: What Impact Does Professional
Representation Have on the Process at the Initial Application
Level?, 23, figure 4 (Sept. 2012) (aggregating data from the agency
to find that only 14% of SSDI applicants and 4.5% of SSI applicants
had representation at the initial application stage),
https://legalaidresearch.org/wp-content/uploads/ssab-social-securi
ty-disability-representation-2012.pdf.
49
costly battles between experts in social security
hearings. It would make little sense to insist upon
exactly this as an applicant’s only means of testing the
reliability of the government’s vocational expert.
C. A vocational expert’s experience and
credibility do not assure reliable conclusions.
In affirming the agency’s decision, the Sixth Circuit
found the ALJ had properly “weigh[ed] the credibility”
of the vocational expert. Pet. App. 22a. And in
defending the Sixth Circuit’s decision, the agency
repeatedly asserts that the ALJ was permitted to credit
the vocational expert’s testimony regarding the number
of jobs available in Southeast Michigan between 2009
and 2013 based solely on the vocational expert’s “11
years of professional experience as a vocational
rehabilitation consultant.” BIO 8; see also id. 12
(“[P]rofessional experience may constitute a valid basis
for a vocational expert’s testimony in a Social Security
disability benefits hearing, where formal evidentiary
rules do not apply at all.”). But an expert’s credibility
and experience are no substitute for a meaningful
inquiry into whether the specific fact-based conclusions
the expert proffers are reliable.
In challenging the vocational expert’s testimony and
seeking access to the data upon which it was based,
Petitioner sought to test the rationality and reliability of
the expert’s conclusions that jobs were available to him.
Specifically, the expert provided estimates of various
jobs available to Petitioner based on hypotheticals posed
by the ALJ regarding Petitioner’s limitations. Thus, the
expert testified that if Petitioner were able to work at
50
the light exertional level, see 20 C.F.R. § 404.1567(b), he
could take a job as a “bench assembler” with “6,000 jobs
in Southeast Michigan.” Pet. App. 116a. Next, the
expert testified that if Petitioner could only perform
work at the sedentary level, see 20 C.F.R. § 404.1567(a),
he could still work as a bench assembler with “3,000 jobs
in Southeast Michigan.” Pet. App. 116a. She then
testified that for under the sedentary exertion level the
jobs numbers would need to be reduced further by
“about 20 to 30 percent.” Pet. App. 117a. In support of
these numbers—meant to reflect the jobs market
between October 2008 and May 2013—the expert said
she was relying upon data from “the Bureau of Labor
Statistics as well as [her] own individual labor market
surveys.” Pet. App. 119a.
The expert’s testimony—the sole source for the
ALJ’s finding by “substantial evidence” of “other work”
available to Petitioner in the regional economy—thus
referenced specific jobs, at a specific time, in a specific
place. To be sure, the expert’s general experience may
have aided her conclusion, and her credibility was a
necessary condition for the ALJ’s reliance upon her
testimony. But, more critically, the expert’s testimony
required looking at data sources and drawing
conclusions from those sources. And as the Seventh
Circuit has recognized, it is the job of the ALJ to “hold
the VE to account for the reliability of his job-number
estimates.” Chavez, 895 F.3d at 970. Job markets are
dynamic, and the existence of certain jobs—and the
qualifications required for them—may change over time.
Browning v. Colvin, 766 F.3d 702, 709 (7th Cir. 2014)
(“No doubt many of the jobs [in the DOT] have changed
51
and some have disappeared. We have no idea how
vocational experts and administrative law judges deal
with this problem.”).
When an expert claims a specific evidentiary
foundation for his or her testimony, and then withholds
that foundation when asked to provide it, the expert’s
general experience and credibility are not sufficient to
ensure the reliability that “substantial evidence”
requires. Experience and credibility are important, but
they provide no means for the applicant to test—and the
ALJ to assess—whether the expert’s data source is
incomplete or unrepresentative, or the expert’s
methodology flawed. See, e.g., Andreu ex rel. Andreu v.
Sec’y of Dep’t of Health & Human Servs., 569 F.3d 1367,
1379 (Fed. Cir. 2009) (“A trial court makes a credibility
determination in order to assess the candor of a fact
witness, not to evaluate whether an expert witness’
medical theory is supported by the weight of
epidemiological evidence.”); Hendrix ex rel. G.P. v.
Evenflo Co., 609 F.3d 1183, 1201 (11th Cir. 2010)
(“Merely demonstrating that an expert has experience
. . . does not automatically render every opinion and
statement by that expert reliable.”).6
Again,
particularly when an expert acknowledges that a
6
Lower courts in the Seventh Circuit have applied exactly this
reasoning in the context of vocational expert testimony. See Holtz
v. Astrue, No. 07-C-314-C, 2007 WL 5323758, at *5 (W.D. Wis. Nov.
8, 2007) (“What Harris failed to explain, however, was the method
she employed in making this reduction. All she cited was her
experience, but that experience does not explain her math. She did
not cite any formal market surveys that she or other vocational
experts had done or even describe any informal method she
employed to extrapolate her estimates from the state job data.”).
52
conclusion rests on data, provision of that data to the
opposing party is the best means of assessing the
conclusion’s reliability and worth.
III.
REQUIRING VOCATIONAL EXPERTS TO
PROVIDE ON REQUEST THE DATA
UNDERLYING THEIR TESTIMONY IS
CONSISTENT WITH THE AGENCY’S OWN
POLICIES AND WITH COMMON SENSE.
In opposing certiorari, the agency argued that the
problem identified by Petitioner might be of “limited
prospective importance.” BIO 18. In support of this
claim, the agency cited the 2017 update to its Vocational
Expert Handbook, which advises vocational experts that
they “should be able to thoroughly explain what
resource materials [they] used and how [they] arrived at
[their] opinions.” BIO 18 (citing Vocational Expert
Handbook at 37). But the Vocational Expert Handbook
is no solution. Most principally, it does not instruct
vocational experts to provide on request the data on
which they rely. And in any event the Vocational
Expert Handbook is advisory, not mandatory. Given
that the issue presented in this case only arises when an
expert refuses to voluntarily provide data, advisory
guidance furnishes little assistance.
That said, the Vocational Expert Handbook is
significant in one important respect: It demonstrates
the agency’s acknowledgment that it is important for
ALJs to evaluate the data underlying conclusions that
vocational experts reach. The Vocational Expert
Handbook’s acknowledgment of this fact makes the
agency’s legal position here all the more unsustainable.
53
Specifically, the Vocational Expert Handbook instructs
each vocational expert to “be prepared to cite, explain,
and furnish any sources” relied upon in formulating his
or her hearing testimony. See Vocational Expert
Handbook at 3, 19, 20, 28, 31. It likewise advises
vocational experts that they “should have available, at
the hearing, any vocational resource materials [on which
they] are likely to rely”; and that they “should be able to
thoroughly explain what resource materials [they] used
and how [they] arrived at [their] opinions.” Id. at 37. It
informs vocational experts that “[i]n some cases, the
ALJ may ask you to provide relevant portions of
materials you rely upon.” Id.
These instructions reflect a reality—entirely at odds
with the agency’s position here—that the say-so of a
vocational expert is not enough for the ALJ to make a
finding supported by substantial evidence. The agency
recognizes that it is good policy for vocational experts to
“cite, explain, and furnish any sources” upon which they
rely. But it cannot explain why that policy makes sense
only when an expert is willing to turn over the data, but
not when the expert refuses. It is no answer, moreover,
to claim that the purported “confidentiality” of private
labor market surveys provides vocational experts with a
coherent basis for refusing to share such information.7
After all, there are myriad ways to protect the use and
disclosure of confidential information in adjudications,
7
Since 2002, when the Seventh Circuit adopted its rule requiring
disclosure on request, courts within the circuit have rejected a
“confidential[ity]” exception without any problematic results. See,
e.g., Ramzan v. Colvin, No. 12C7362, 2015 WL 5921811, at *7 (N.D.
Ill. Oct. 9, 2015).
54
just as in civil litigation. If agencies and courts are
equipped to handle highly sensitive information related
to national security, trade secrets, and foreign affairs,
surely labor market surveys can likewise be shared in a
manner that does not jeopardize the vocational expert’s
“client files.”
The agency has also recognized in contexts beyond
the Vocational Expert Handbook that the say-so of a
vocational expert is not enough.
In a policy
interpretation ruling, the agency explained that a
vocational expert’s testimony does not “automatically
‘trump[]’ when there is a conflict” with other evidence.
SSR 00-4P, 2000 WL 1898704, at *2 (Dec. 4, 2000). To
the contrary, the agency imposes “an affirmative
responsibility” on the ALJ to inquire into, and resolve,
“any possible conflict” between the expert’s testimony
and the occupational information listed in the DOT
before the ALJ can rely on the vocational expert’s
testimony. Id. at *4. In resolving any conflict, the ALJ
must “identify and obtain a reasonable explanation” for
the expert’s testimony. Id. at *1. Without such an
explanation, the ALJ cannot rely on the expert’s
testimony in weighing the evidence. Id.
By placing this obligation on the ALJ, the agency is
not “importing” the Federal Rules of Evidence into
disability determinations. Rather, SSR 00-4P simply
reflects the common sense reality that vocational expert
testimony is not dispositive simply because it comes
from a so-called expert. The same reality applies to
testimony that a vocational expert provides about the
extent of “other work” available to the applicant. Where
the expert’s testimony is challenged—in this case
55
through cross-examination by the applicant, rather than
by conflict with the DOT—the expert’s say-so is not
enough. The ALJ must look behind the expert’s
conclusion to test its basis. Absent that inquiry, the ALJ
is left with nothing more than unsupported conclusions
and ipse dixit, neither of which rises to the level of
substantial evidence. See Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997).
The Seventh Circuit’s approach comports not only
with the agency’s policies but also with common sense.
Where an expert references on cross-examination the
existence of data sources on which the expert is relying,
there is no legitimate reason for the expert to withhold
those sources if the applicant requests to see them.
After all, the sources must exist because they provide
the purported basis for the expert’s testimony.
Experience from the Seventh Circuit over the last
sixteen years demonstrates that providing the data does
not delay or disrupt social security disability hearings.
And the agency’s own regulations recognize the benefits
of vocational experts having their sources available upon
request as a matter of good policy. If experts have no
sources then there is no basis for the ALJ to find that
their testimony constitutes substantial evidence. If they
do have sources, there is no legitimate basis to withhold
them.
* * *
This Court has recognized that “[t]he Social Security
hearing system is ‘probably the largest adjudicative
agency in the western world.’” See Heckler v. Campbell,
461 U.S. 458, 461 n.2 (1983). Requiring vocational
56
experts to produce upon request the data underlying
their conclusions advances the “need for efficiency” in
this system while effectuating the requirement of
substantial evidence. Id. (internal citation omitted). The
rule is “understandable to the layman applicant,”
“efficient,” and “fundamentally fair.” Perales, 402 U.S.
at 401-02. And, most important, it is consistent with this
Court’s interpretation of the requirement that a finding
be supported by “substantial evidence” as required by
§ 405(g).
CONCLUSION
The judgment of the Sixth Circuit should be
reversed.
Respectfully submitted,
FREDERICK J. DALEY, JR.
ISHAN K. BHABHA
Counsel of Record
MEREDITH MARCUS
DALEY DISABILITY LAW, PC NATACHA Y. LAM
LAUREN J. HARTZ
601 W. Randolph Street,
JENNER & BLOCK LLP
Suite 300
1099 New York Ave., NW,
Chicago, IL 60661
Suite 900
(312) 561-3030
Washington, DC 20001
(202) 637-6327
IBhabha@jenner.com
August 27, 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.