Amicus Curiae Brief — Michael J. Biestek, Petitioner v. Nancy A. Berryhill, Acting Commissioner of Social Security

No. 17-1184

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------MICHAEL J. BIESTEK,

Petitioner,

v.

NANCY A. BERRYHILL, DEPUTY COMMISSIONER

FOR OPERATIONS, SOCIAL SECURITY

ADMINISTRATION,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE

NATIONAL ORGANIZATION OF SOCIAL SECURITY

CLAIMANTS’ REPRESENTATIVES; AARP & AARP

FOUNDATION IN SUPPORT OF THE PETITIONER

-----------------------------------------------------------------LAWRENCE D. ROHLFING

Counsel of Record

LAW OFFICES OF

LAWRENCE D. ROHLFING

12631 E. Imperial Highway,

Suite C115

Santa Fe Springs, CA 90631

Telephone: (562) 868-5886

rohlfing.office@

rohlfinglaw.com

BARBARA A. JONES

WILLIAM ALVARADO RIVERA

AARP FOUNDATION

LITIGATION

601 E Street, N.W.

Washington, D.C. 20049

Telephone: (202) 434-6091

bjones@aarp.org

CODY T. MARVIN

LAW OFFICES OF

BARRY A. SCHULTZ, P.C.

1601 Sherman Avenue,

Suite 500

Evanston, IL 60201

Telephone: (847) 864-0224

cody@barryschultz.com

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF THE ARGUMENT .....................

2

ARGUMENT ........................................................

4

I.

Vocational Expert Testimony About the

Number of Jobs is Not Consistent or

Inherently Reliable, and an Inability to

Verify the Basis of Vocational Expert

Testimony Would Result in Denial of

Meritorious Claims ....................................

4

II.

Requiring Vocational Experts to Provide

Data Underlying Their Opinions Will Not

Unduly Burden the Agency ....................... 12

III.

Due Process Concerns in Perales Support

Petitioner’s Position ................................... 15

CONCLUSION..................................................... 19

ii

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Berryhill, No. 5:16-CV-747-BO,

2017 WL 3624238 (E.D.N.C. Aug. 23, 2017) .............6

Binger v. Astrue, No. EDCV 08-0852-RC, 2009

WL 2848999 (C.D. Cal. Aug. 31, 2009).................. 6, 7

Britton v. Astrue, 521 F.3d 799 (7th Cir. 2008)..... 10, 16

Davis v. Comm’r of Soc. Sec., No. 15-CV-10176,

2015 WL 12683814 (E.D. Mich. Nov. 19, 2015) ........8

Donahue v. Barnhart, 279 F.3d 441 (7th Cir.

2002) ........................................................................13

Flores v. Berryhill, No. CV H-15-3462, 2017 WL

698528 (S.D. Tex. Feb. 21, 2017) ...............................8

Flores v. Berryhill, No. CV H-17-30, 2017 WL

3412163 (S.D. Tex. Aug. 7, 2017) ...............................7

Kotok v. Berryhill, No. C17-191-BAT, 2017 WL

2859507 (W.D. Wash. Jul. 5, 2017) ............................7

Kruppenbacker v. Berryhill, No. 6:17-CV-06068MAT, 2017 WL 6275727 (W.D.N.Y. Dec. 11,

2017) ...................................................................... 6, 8

McKinnie v. Barnhart, 368 F.3d 907 (7th Cir.

2004) ........................................................................12

Mora v. Berryhill, No. 1:16-CV-01279-SKO, 2018

WL 636923 (E.D. Cal. Jan. 31, 2018) ........................7

Paul v. Colvin, No. 3:15CV123/EMT, 2016 WL

1169475 (N.D. Fla. Mar. 22, 2016) ............................8

Razo v. Colvin, No. 1:14-CV-00945-NYW, 2015

WL 6689400 (D. Colo. Nov. 3, 2015) ..........................8

iii

TABLE OF AUTHORITIES – Continued

Page

Richardson v. Perales, 402 U.S. 389 (1971) ........ passim

Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir.

2018) ................................................................ 5, 10, 17

Steadman v. SEC, 450 U.S. 91, 101 S.Ct. 999, 67

L.Ed.2d 69 (1981) ....................................................11

Steigerwald v. Comm’r of Soc. Sec., No. 1:12 CV

02739, 2013 WL 5330837 (N.D. Ohio Sept. 23,

2013) ..........................................................................8

Stone v. Colvin, No. 1:13CV52/MCR/CAS, 2014

WL 1017929 (N.D. Fla. Mar. 17, 2014) .....................7

U.S. Steel Min. Co., Inc. v. Director, Office of

Workers’ Compensation Programs, U.S. Dept.

of Labor, 187 F.3d 384 (4th Cir. 1999) .............. 10, 11

Wilson v. Berryhill, No. 1:16-CV-01861-SKO,

2018 WL 1425963 (E.D. Cal. Mar. 22, 2018) ............8

Wolfanger v. Colvin, No. 6:16-CV-06688 (MAT),

2018 WL 2425811 (W.D.N.Y. May 30, 2018) .............6

Wood v. Berryhill, No. 3:17-cv-5430-RJB-BAT,

2017 WL 6419313 (W.D. Wash. Nov. 17, 2017) .........6

Woodby v. Colvin, No. CV.A. 1:14-952-RMG,

2015 WL 628482 (D.S.C. Feb. 12, 2015) ....................7

STATUTES

5 U.S.C. § 556(d ..................................................... 10, 18

42 U.S.C. § 423(d)(2)(A) ................................................3

iv

TABLE OF AUTHORITIES – Continued

Page

RULES AND REGULATIONS

Sup. Ct. R. 37.6 .............................................................1

20 C.F.R. § 404.935(a) .................................................16

20 C.F.R. § 404.935(b) .................................................17

20 C.F.R. § 404.949 ............................................... 16, 17

20 C.F.R. § 404.953(a) .................................................11

20 C.F.R. § 404.1520 .....................................................4

20 C.F.R. § 404.1560(c)(2) ......................................... 3, 4

20 C.F.R. § 404.1566(d) ............................................. 3, 4

20 C.F.R. § 404.1566(e) .................................................5

OTHER AUTHORITIES

Dictionary of Occupational Titles (DOT), U.S.

Dep’t of Labor, Dictionary of Occupational Titles (4th ed. rev. 1991), https://www.oalj.dol.

gov/LIBDOT.HTM .....................................................5

Mikki Waid, Social Security Disability Benefits:

A Lifeline for Workers with Disabilities, Pub.

Policy Inst. (Apr. 2015) https://bit.ly/2BZCgIM

(last visited Aug. 29, 2018)........................................2

Office of Hearings Operations, Soc. Sec. Admin.,

Top 10 Remand Reasons Cited by the Court on

Remands to SSA, https://www.ssa.gov/appeals/

DataSets/AC08_Top_10_CR.html (last visited

Aug. 29, 2018) ..........................................................13

v

TABLE OF AUTHORITIES – Continued

Page

Office of Hearings Operations, Soc. Sec. Admin.,

https://www.ssa.gov/appeals/DataSets/05_

Average_Processing_Time_Report.html (last

visited Aug. 29, 2018) ..............................................13

SSR 00-4p, 65 Fed. Reg. 75,759 (Dec. 4, 2000) .............5

Soc. Sec. Admin., Vocational Expert Handbook

(Aug. 2017), https://www.ssa.gov/appeals/public_

experts/Vocational_Experts_(VE)_Handbook508.pdf ....................................................... 3, 4, 17, 18

1

INTEREST OF AMICI CURIAE1

The National Organization of Social Security

Claimants’ Representatives (NOSSCR) is a national

membership organization comprising approximately

2,900 individuals, mostly attorneys, who represent individuals applying and appealing claims for Social Security and Supplemental Security Income (SSI)

benefits. NOSSCR members include employees of legal

services organizations, educational institutions, and

other nonprofits; employees of for-profit law firms and

other businesses; and individuals in private practice.

NOSSCR members represent Social Security and

SSI claimants before the Social Security Administration and in the courts. Approximately 70% of claimants

who appeared in disability hearings before administrative law judges in the fiscal year ending September 30,

2017, were represented by attorneys or non-attorney

representatives.

NOSSCR has a great interest in ensuring that its

members’ clients are awarded benefits when they meet

the criteria under the Social Security Act and the Commissioner’s regulations, and that their clients continue

to have due process hearings where the claimants and

1

Under Supreme Court Rule 37.6, Amici state that no counsel for any party authored this brief in whole or in part; and that

no person or entity, other than Amici or their counsel, made a

monetary contribution intended to fund the preparation and submission of this brief. Petitioner filed a blanket consent to the filing

of amicus briefs. Respondent has consented to Amici filing an amicus brief.

2

their representatives have the opportunity to engage

in relevant cross-examination of vocational experts.

AARP is the nation’s largest nonprofit, nonpartisan organization dedicated to empowering Americans

50 and older to choose how they live as they age. With

nearly 38 million members and offices in every state,

the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, AARP works to strengthen communities

and advocate for what matters most to families, with a

focus on financial stability, health security, and personal fulfillment. AARP’s charitable affiliate, AARP

Foundation works to end senior poverty by helping vulnerable older adults build economic opportunity and

social connectedness. AARP and AARP Foundation

support ensuring access to disability benefits under

the Social Security Disability Insurance (SSDI) and

Supplemental Security Income (SSI) programs because older workers with disabilities rely heavily on

those benefits to stay out of poverty. Mikki Waid, Social

Security Disability Benefits: A Lifeline for Workers with

Disabilities, Pub. Policy Inst. (Apr. 2015) https://bit.ly/

2BZCgIM (last visited Aug. 29, 2018).

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

This case concerns step five of the five-step sequential evaluation of the adjudication of disability

claims under the Social Security Act. At step five, the

Commissioner has the burden to provide evidence of

jobs that a claimant can perform which exist in

3

significant numbers in the economy. 42 U.S.C.

§ 423(d)(2)(A); 20 C.F.R. §§ 404.1566(d); 1560(c)(2)

(2018).2 The vocational expert in this case testified to

the existence of work as a sorter and final assembler,

relying not only upon the Dictionary of Occupational

Titles, but also on her own experience. Biestek asked

for the job analysis supporting the vocational expert’s

testimony. The ALJ stated that she would “not require

that.” Pet. App. at 119a. Biestek could not examine the

foundation of that testimony once the ALJ stated that

she would not require production of foundational material. Biestek had no opportunity to identify potential

flaws in the analysis and argue to the ALJ that a preponderance of the evidence did not support the expert’s

opinion. Without access to the basis of the testimony,

Biestek also lacked an adequate record upon which to

argue on judicial review that the vocational expert’s

analysis did not support her testimony. Thus the vocational expert’s testimony lacked a foundation which a

reasonable mind might accept as adequate to support

the ALJ’s conclusion that there was a significant number of jobs in the economy which Biestek could perform. Richardson v. Perales, 402 U.S. 389, 401 (1971).

Moreover, the Commissioner has made clear that vocational experts should be prepared to cite, explain, and

furnish any sources relied upon to support the testimony. Soc. Sec. Admin., Vocational Expert Handbook

(Aug. 2017), https://www.ssa.gov/appeals/public_experts/

Vocational_Experts_(VE)_Handbook-508.pdf, at 3, 19,

20, 28, 31, 38 (last visited Aug. 29, 2018) (hereafter

2

All citations are to the April 1, 2018 20 C.F.R.

4

“Handbook”). The evidentiary standard in Perales

should apply to vocational expert testimony, and vocational experts should be prepared to explain why the

sources which provide the basis for their testimony are

reliable. Id. at 38.

------------------------------------------------------------------

ARGUMENT

I.

Vocational Expert Testimony About the

Number of Jobs is Not Consistent or Inherently Reliable, and an Inability to Verify

the Basis of Vocational Expert Testimony

Would Result in Denial of Meritorious

Claims.

The regulations require a five-step sequential

evaluation process to resolve disability claims. 20

C.F.R. § 404.1520. Step five consists of two distinct

parts: (1) whether a claimant’s vocational profile (age,

education, work experience, and limitations resulting

from physical and mental impairments) allows for the

performance of specific jobs in the economy, and (2)

whether the jobs identified exist in “significant numbers either in the region where you live or in several

regions of the country.”3 20 C.F.R. § 404.1566(d). The

Commissioner has the responsibility “for providing evidence that demonstrates that other work exists in significant numbers in the national economy that you can

do.” 20 C.F.R. § 404.1560(c)(2). ALJs frequently use

3

The Commissioner does not define “significant numbers” in

the regulation and offers no guidance in any sub-regulatory rulings or manuals.

5

vocational experts to answer questions about the existence of work and the numbers of jobs. 20 C.F.R.

§ 404.1566(e).

The Commissioner provides some protection to

claimants regarding the first part of step five in Social

Security Ruling 00-4p, which places an “affirmative responsibility” on the ALJ “to ask about any possible conflict” between the vocational expert’s testimony and

the Dictionary of Occupational Titles (DOT), U.S. Dep’t

of Labor, Dictionary of Occupational Titles (4th ed. rev.

1991), https://www.oalj.dol.gov/LIBDOT.HTM.4 If an

apparent conflict exists between the expert testimony

and the DOT, the ALJ must resolve the conflict and explain in the decision how the conflict was resolved. Id.

The DOT describes job titles, industry, duties, exertion,

education, and training requirements of jobs, but does

not provide numbers of jobs in the economy.

The Commissioner’s institutional effort to obtain

reliable evidence from vocational experts does not extend to vocational expert testimony regarding the

numbers of jobs in the economy. Shaibi v. Berryhill, 883

F.3d 1102, 1108-09 (9th Cir. 2018) (no sua sponte duty

4

Social Security Ruling 00-4p recognizes that vocational expert testimony will sometimes conflict with information in the

DOT. “Neither the DOT nor the VE [vocational expert] or VS [vocational specialist] evidence automatically ‘trumps’ when there is

a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and

provides a basis for relying on the VE or VS testimony rather than

on the DOT information.” SSR 00-4p, 65 Fed. Reg. 75,759 (Dec. 4,

2000). Neither the regulations nor the rulings define the qualifications of a vocational expert.

6

to resolve conflicts regarding the numbers of jobs in

the economy). Vocational expert opinions about numbers of jobs vary widely. In this case, for example, the

vocational expert testified that there were 120,000

sorter jobs in the nation.5 Recent district court cases

show that there is no consensus on the number of nut

sorter jobs in the national economy. As shown in the

table below, vocational experts in other cases have

opined that there are as few as 274 nut sorter jobs nationally, and as many as 471,000, with a range of opinions in between.

Number of nut sorter jobs Month and year of

in the national economy vocational expert opinion

2746

October/November 2016

7

5,000

September 2008

8

16,000

September 2014

26,0009

June 2015

10

40,000

October 2014

5

The vocational expert referred to this job as “sorter.” Pet.

App. at 116a. The DOT code provided corresponds to the title of

nut sorter. DOT 521.687-086. The DOT states that a nut sorter

“[r]emoves defective nuts and foreign matter from bulk nut

meats.” Id.

6

Wood v. Berryhill, No. 3:17-cv-5430-RJB-BAT, 2017 WL

6419313, at *3 (W.D. Wash. Nov. 17, 2017).

7

Binger v. Astrue, No. EDCV 08-0852-RC, 2009 WL 2848999,

at *6 (C.D. Cal. Aug. 31, 2009).

8

Wolfanger v. Colvin, No. 6:16-CV-06688 (MAT), 2018 WL

2425811, at *2 (W.D.N.Y. May 30, 2018).

9

Kruppenbacker v. Berryhill, No. 6:17-CV-06068-MAT, 2017

WL 6275727, at *2 (W.D.N.Y. Dec. 11, 2017).

10

Alexander v. Berryhill, No. 5:16-CV-747-BO, 2017 WL

3624238, at *3 (E.D.N.C. Aug. 23, 2017).

7

50,00011

75,00012

135,00013

471,00014

November 2013

October 2011

September 2012

December 2014

The vocational expert in this case also testified

that there were 240,000 final assembler jobs in the nation.15 Pet. App. at 116a. Recent cases show variable

responses for the number of final assembler jobs in the

national economy.

Number of final assembler Month and year of

jobs in the national

vocational expert opinion

economy

4,80016

September 2008

17

6,500

December 2014

11

Flores v. Berryhill, No. CV H-17-30, 2017 WL 3412163, at

*10 (S.D. Tex. Aug. 7, 2017).

12

Stone v. Colvin, No. 1:13CV52/MCR/CAS, 2014 WL

1017929, at *9 (N.D. Fla. Mar. 17, 2014).

13

Woodby v. Colvin, No. CV.A. 1:14-952-RMG, 2015 WL

628482, at *9 (D.S.C. Feb. 12, 2015).

14

Mora v. Berryhill, No. 1:16-CV-01279-SKO, 2018 WL

636923, at *3 (E.D. Cal. Jan. 31, 2018).

15

The vocational expert referred to the job as “bench assembler,” but the DOT code given refers to final assembler, DICOT

713.687-018. According to the DOT, a final assembler “[a]ttaches

nose pads and temple pieces to optical frames, using handtools.”

Id.

16

Binger, 2009 WL 2848999, at *6.

17

Kotok v. Berryhill, No. C17-191-BAT, 2017 WL 2859507, at

*3 (W.D. Wash. Jul. 5, 2017).

8

7,00018

14,00019

20,00020

75,00021

175,00022

239,50023

280,16024

June 2013

October 2012

June 2015

September 2014

November 2013

May 2013

March 2011

These experts were all asked questions meant to

elicit whether there were jobs for a hypothetical claimant, and they all: (a) stated that either nut sorter or

final assembler could be performed; and (b) then gave

widely disparate answers as to the numbers of jobs

available nationally. The answers are not reconcilable

through any published data. ALJs have accepted and

relied on this evidence to deny claims for benefits. The

courts review a small percentage of ALJ decisions and

only those where the claimant files a complaint for judicial review of the Commissioner’s final decision. The

18

Wilson v. Berryhill, No. 1:16-CV-01861-SKO, 2018 WL

1425963, at *35 (E.D. Cal. Mar. 22, 2018).

19

Razo v. Colvin, No. 1:14-CV-00945-NYW, 2015 WL

6689400, at *13 (D. Colo. Nov. 3, 2015).

20

Kruppenbacker v. Berryhill, No. 6:17-CV-06068-MAT, 2017

WL 6275727, at *2 (W.D.N.Y. Dec. 11, 2017).

21

Davis v. Comm’r of Soc. Sec., No. 15-CV-10176, 2015 WL

12683814, at *3 (E.D. Mich. Nov. 19, 2015).

22

Flores v. Berryhill, No. CV H-15-3462, 2017 WL 698528, at

*11 (S.D. Tex. Feb. 21, 2017).

23

Paul v. Colvin, No. 3:15CV123/EMT, 2016 WL 1169475, at

*6 (N.D. Fla. Mar. 22, 2016).

24

Steigerwald v. Comm’r of Soc. Sec., No. 1:12 CV 02739,

2013 WL 5330837, at *2 (N.D. Ohio Sept. 23, 2013).

9

courts do not review favorable decisions where ALJs

rely on vocational expert testimony to find that a

claimant’s impairments preclude the performance of

jobs which exist in significant numbers. There may

well be many cases where the vocational expert testified to the existence of even fewer numbers of the same

jobs and approved the claims.

Claimants should have right to review, comment

on, and rebut evidence in administrative hearings, and

vocational expert opinions should not be treated differently. The right of claimants to comment on and rebut

vocational expert opinions prevents the denial of meritorious claims. An ALJ who relies on vocational expert

testimony that there are hundreds of thousands of nut

sorter and final assembler jobs may find that there are

a significant number of jobs the claimant can perform

and deny the claim. However, if the lower estimates of

274 jobs, 5,000 jobs, or even 16,000 jobs in the nation

are more accurate, an ALJ may find that the claimant

cannot perform a significant number of jobs and award

benefits. If a claimant challenges the basis of a vocational expert’s opinion, the claimant must be permitted

to review the basis of the opinion to ensure that it is

reasonably accurate. See 5 U.S.C. § 556(d) (“A party is

entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to

conduct such cross-examination as may be required for

a full and true disclosure of the facts.”)25 Without the

25

This Court has not decided whether the Administrative

Procedure Act generally applies to Social Security hearings. However, in Perales, this Court stated that the provisions of 5 U.S.C.

10

ability to review the basis of the testimony, a claimant

cannot present an effective challenge to the vocational

expert’s opinions. A claimant must be able to meaningfully comment on and rebut a vocational expert’s opinion. A “claimant will rarely, if ever, be in a position to

anticipate the particular occupations a [vocational expert] might list and the corresponding job numbers to

which a [vocational expert] might testify at a hearing.”

Shaibi, 883 F.3d at 1110. The courts must remain cognizant “that the lack of pretrial discovery in Social Security hearings can make the task of cross-examining

a [vocational expert] quite difficult.” Britton v. Astrue,

521 F.3d 799, 804 (7th Cir. 2008).

Requiring vocational experts to produce data on

demand serves the interests of both claimants and the

Commissioner. Amici recognize that the Social Security Administration has both an interest in ensuring

that benefits are paid promptly to those who are entitled to them, and also an interest in protecting the disability trust fund against non-meritorious claims. If

data must be available on demand, both claimants and

the Commissioner can expect greater reliability from

vocational expert testimony, more uniformity in the

adjudicative system, and more efficient resolution of

conflicts in or questions about the testimony. As the

Fourth Circuit explained in U.S. Steel Min. Co., Inc. v.

§ 556(d) were consistent with the Social Security Act. Perales, 402

U.S. at 409-10. The APA either applies or informs the principles of

administrative notice and rebuttal evidence in Social Security

disability claims.

11

Director, Office of Workers’ Compensation Programs,

U.S. Dept. of Labor, 187 F.3d 384 (4th Cir. 1999):

The ALJ’s duty to screen evidence for reliability, probativeness, and substantiality similarly ensures that final agency decisions will

be based on evidence of requisite quality and

quantity. As the Supreme Court has observed,

in enacting § 556(d) of the Administrative

Procedure Act, “Congress was primarily concerned with the elimination of agency decision-making premised on evidence which was

of poor quality-irrelevant, immaterial, unreliable, and nonprobative-and of insufficient

quantity.” Steadman v. SEC, 450 U.S. 91, 102,

101 S.Ct. 999, 67 L.Ed.2d 69 (1981).

Id. at 389.

The requirement to produce the data upon which

the vocational expert relied on demand ensures fairness in evaluation of a claimant’s questions about vocational expert testimony. While the substantial

evidence standard applies to judicial review of Social

Security cases, claims at the administrative level before the ALJ are decided based on a preponderance of

the evidence. 20 C.F.R. § 404.953(a). If a claimant questions vocational expert testimony, and on production of

the vocational expert’s data the claimant identifies a

flaw in the analysis, the claimant then can point out

the flaw to the ALJ and argue that a preponderance of

the evidence supports a conclusion that there are not

jobs in significant numbers that the claimant can perform. If the ALJ agrees with the claimant, then further

12

litigation has been prevented, and a deserving claimant has been awarded benefits. If the ALJ does not

agree with the claimant, then the ALJ should provide

an explanation in the decision. If this explanation satisfies the claimant, or is at least not legally or factually

incorrect, litigation may be prevented. If the ALJ does

not agree with the claimant’s challenge, and the claimant believes the ALJ’s decision is not supported by substantial evidence, the record will include the detail

necessary for a reviewing court to evaluate the ALJ’s

decision to rely on the vocational expert’s opinion. Requiring vocational experts to produce the foundation

and reasoning underlying their opinions on demand

and allowing claimants to comment on and rebut those

opinions is consistent with principles of reliability, consistency, and fairness which serve the interests of both

claimants and the Commissioner.

II.

Requiring Vocational Experts to Provide

Data Underlying Their Opinions Will Not

Unduly Burden the Agency.

The Seventh Circuit’s requirement that vocational

experts provide the reasoning underlying their opinions on demand does not impose a significant burden

on the agency. McKinnie v. Barnhart, 368 F.3d 907, 911

(7th Cir. 2004). Social Security published the top ten

reasons for remands from District Courts for each year

from 2010 through 2017, and no vocational expert

13

issue appears on any list.26 Even if the “other” category

includes vocational issues, the incidence of vocational

expert testimony forming the basis for remand from

federal courts is uncommon. The rule that vocational

experts be able to produce the basis for their testimony

on demand has been the law in the Seventh Circuit for

over fifteen years. Donahue v. Barnhart, 279 F.3d 441,

446 (7th Cir. 2002). Despite the right of claimants to

challenge vocational expert testimony at hearings, processing times at hearing offices within the Seventh

Circuit generally fall within the average range.27 There

is no evidence that vocational expert challenges have

caused any significant delays or increase in litigation.

The Court in Perales, 402 U.S. at 406, was concerned with the burden on the Social Security Administration in different circumstances, but those concerns

do not apply here. The petitioner in Perales objected to

four medical opinions and asked the court to require

all doctors who provided a written opinion to submit to

26

Office of Hearings Operations, Soc. Sec. Admin., Top 10 Remand Reasons Cited by the Court on Remands to SSA, https://

www.ssa.gov/appeals/DataSets/AC08_Top_10_CR.html (last visited Aug. 29, 2018).

27

Social Security operates 164 hearing offices. The fastest

processing time for offices within the Seventh Circuit is Fort

Wayne, IN which ranks 34th, and the slowest is Madison, WI

which ranks 133rd. Of the hearing offices within the Seventh Circuit, seven of them are in the top half in processing time (Fort

Wayne, IN, Chicago, IL, Evanston, IL, Orland Park, IL, Oak Brook,

IL, Peoria, IL, and Evansville, IN). Office of Hearings Operations,

Soc. Sec. Admin., https://www.ssa.gov/appeals/DataSets/05_

Average_Processing_Time_Report.html (last visited Aug. 29,

2018).

14

cross-examination. To require the administration to arrange for cross-examination of all doctors whose written opinions are already contained in the record would

be a significant administrative burden, and also a financial burden, as the Commissioner would have to

pay the doctors to review the files and appear at a

hearing.

Requiring vocational experts to cite, explain, and

furnish the sources relied upon for their testimony imposes little or no burden on the Commissioner. The vocational expert is either physically present at the

hearing, appears by telephone or video teleconferencing, or answers interrogatories.28 The vocational expert

should have the basis of the opinion at the time it is

given, so it should not be difficult or time-consuming

for the expert to cite, explain, and furnish the sources

relied upon for their testimony to a claimant’s representative if it is requested. This process would likely

prevent rather than cause delays by ensuring that vocational experts are well-prepared and give supportable testimony, and would give greater confidence to

ALJs in relying on that testimony at step five. If the

basis for vocational expert testimony is available on

demand, nearly all questions of reliability could be resolved during or shortly after the hearing.

28

In cases where interrogatories are posed after the hearing

the responses are proffered to the claimant, the claimant then has

“the opportunity to review responses, submit comments or rebuttal evidence, object to questions, or to propose additional questions.” HALLEX, § I-2-5-30.

15

The vocational expert in this case stated that some

of the information relied upon was from individual labor market surveys and was confidential. The ALJ did

not require the vocational expert to provide documentation from the surveys which provided the basis for

the opinion. It is not clear from the record that this evidence was confidential, but even if it was confidentiality could readily be preserved by redacting any private

information in the documents. Redaction would take

little time for vocational experts and would not cause

additional cost or delay to the agency.

III. Due Process Concerns in Perales Support

Petitioner’s Position.

The Court held the following in Perales:

We conclude that a written report by a licensed physician who has examined the

claimant and who sets forth in his report his

medical findings in his area of competence

may be received as evidence in a disability

hearing and, despite its hearsay character

and an absence of cross-examination, and despite the presence of opposing direct medical

testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner

adverse to the claimant, when the claimant

has not exercised his right to subpoena the reporting physician and thereby provide himself

with the opportunity for cross-examination of

the physician.

16

Perales, 402 U.S. at 402. The circumstances in Perales

differ from the circumstances in this case in several respects, and those differences support Biestek’s position.

The claimant in Perales was afforded far greater

due process regarding medical opinions than Biestek

was afforded in his challenge to vocational expert testimony. In Perales, the claimant had access to the medical reports in question well before the hearing; the

reports were completed by physicians who had examined the claimant, several of whom were treating physicians retained by the claimant; the reports contained

the details of the examinations which provided the bases for the doctors’ conclusions; the regulations specifically provided the claimant with the right to request

a subpoena, though the claimant did not take advantage of that right; the reports were available to the

claimant prior to the hearing, so he had the opportunity to review the evidence in advance and submit

rebuttal evidence. Id. at 402-06.

Claimants do not have the same protections regarding vocational expert testimony. Claimants cannot

anticipate the testimony, review the foundation of the

testimony, or submit rebuttal evidence prior to the

hearing. Britton, 521 F.3d at 804. Under the regulations, claimants do not ordinarily have a right to submit rebuttal evidence following the hearing. 20 C.F.R.

§ 404.935(a); 20 C.F.R. § 404.949. A claimant must submit written statements to the ALJ “no later than 5

business days before the date set for the hearing,

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unless you show that your circumstances meet the conditions described in § 404.935(b).” 20 C.F.R. § 404.949.

Claimants must ask the ALJ for a continuance or

supplemental hearing when surprised by evidence adduced at the hearing. See HALLEX, § I-2-6-80. Even if

a claimant could submit rebuttal evidence, the best the

claimant can do is submit competing evidence posthearing. Shaibi, 883 F.3d at 1110. Without knowing the

basis for the vocational expert’s conclusions, it may be

difficult or even impossible to determine whether there

are errors underlying those conclusions.

Opinions regarding medical conditions and resulting limitations are very different from opinions regarding work requirements and numbers of jobs in the

economy. Perales involved conflicting medical opinions

concerning the limiting effects of a back injury. The basis of a claimant’s impairments is apparent from the

results of examinations and the treatment record in

the file, but a medical opinion of limitations resulting

from those impairments requires professional judgment. While vocational expert testimony can require

professional judgment in some cases, the requirements

of jobs are factual and should be verifiable to some degree. The number of jobs in the national or regional

economy is a statistical fact. It is reasonable to expect

vocational experts to produce the data supporting their

opinions on request, since the vocational expert should

know the basis at the time of the hearing. The Commissioner recognizes this in the Handbook by stating

that vocational experts “must be prepared to cite, explain, and furnish any sources relied upon in your

18

testimony.” Handbook, at 3, 19, 20, 28, 31, 38. This is

consistent with the requirement of the APA that a

party be entitled to “conduct such cross-examination

as may be required for a full and true disclosure of the

facts.” See, e.g., 5 U.S.C. § 556(d).

The Commissioner makes it clear in the Handbook

that the information sought by Biestek should be available at the time of the hearing. The Commissioner

should not be heard to argue that a requirement for

production of the basis for the vocational expert’s testimony is unreasonable or burdensome in the context

of non-adversarial administrative disability hearings.

A vocational expert should be prepared not only to cite,

explain, and furnish any sources relied upon but to

also explain why those sources are reliable. Handbook,

at 38. Biestek and other claimants should have the opportunity “to conduct such cross-examination as may

be required for a full and true disclosure of the facts.”

Perales, 402 U.S. at 409 (citing 5 U.S.C. § 556(d)).

------------------------------------------------------------------

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CONCLUSION

The Court should reverse the judgment of the

Sixth Circuit Court of Appeals and rule that substantial evidence standard is offended using undisclosed

methods or sources for estimating job numbers.

Respectfully submitted,

LAWRENCE D. ROHLFING

Counsel of Record

LAW OFFICES OF

LAWRENCE D. ROHLFING

12631 E. Imperial Highway,

Suite C115

Santa Fe Springs, CA 90631

Telephone: (562) 868-5886

rohlfing.office@

rohlfinglaw.com

CODY T. MARVIN

LAW OFFICES OF

BARRY A. SCHULTZ, P.C.

1601 Sherman Avenue,

Suite 500

Evanston, IL 60201

Telephone: (847) 864-0224

cody@barryschultz.com

BARBARA A. JONES

WILLIAM ALVARADO RIVERA

AARP FOUNDATION

LITIGATION

601 E Street, N.W.

Washington, D.C. 20049

Telephone: (202) 434-6091

bjones@aarp.org