Opposition Brief — Biestek v. Berryhill, 139 S. Ct. 305 (2018) (No. 17-1184)

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No. 17-1184

In the Supreme Court of the United States

MICHAEL J. BIESTEK, PETITIONER

NANCY A. BERRYHILL, ACTING COMMISSIONER,

SOCIAL SECURITY ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

CHAD A. READLER

Acting Assistant Attorney

General

ALISA B. KLEIN

RACHEL F. HOMER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

gov

(202) 514-2217

QUESTION PRESENTED

Whether the administrative law judge in this Social

Security disability benefits case erred in crediting the

vocational expert’s opinion, which was based upon the

expert’s professional experience, without requiring dis-

closure of the expert’s confidential files.

(1D)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction 1

Statement 2

Argument. 7

Conclusion 19

TABLE OF AUTHORITIES

Cases:

Barnhart v. Thomas, 540 U.S. 20 (2003) 3

Bayliss v. Barnhart, 427 F 3d 1211 (9th Cir. 2005) ..... 13, 16

Brault v. Social Sec. Admin., 683 F 3d 443

(2d Cir. 2012) 4, 11, 13, 16, 17

Britton v. Astrue, 521 F 3d 799 (7th Cir. 2008) .................. 17

Buck v. Berryhill, 869 F 3d 1040 (9th Cir. 2017)............9, 16

Donahue v. Barnhart, 279 F 3d 441

(7th Cir. 2002) 7, 10, 14, 15, 16

Heckler v. Campbell, 461 U.S. 458 (1983) 4

Kumho Tire Co. v. Carmichael, U.S. 137 (1999)......... 12

McKinnie v. Barnhart, 368 F 3d 907

(7th Cir. 2004) 10, 14, 15

Purdy v. Berryhill, 887 F 3d 7 (1st Cir. 2018)........ 14, 16, 17

Richardson v. Perales, 402 U.S. 389 (1971) 3,8

Welsh v. Commissioner Soc. Sec., 662 Fed. Appx. 105

(3d Cir. 2016) 17

Statutes, regulations, and rules:

Social Security Act, 42 U.S.C. 301 et seg. 2

42 U.S.C. 405(b\(1) 3, 8, 10, 11

42 U.S.C. 405(g) 3

42 U.S.C. 423(aX1 XE) 2

(IID

Statutes, regulations, and rules—-Continued:

42 U.S.C. 423(d)(1 (A)

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

42 U.S.C. 1381a

42 U.S.C. 1382e(aX(3)(A)

42 U.S.C. 1382c(aX3\(B)

Nw Nw WN WS

20 C.F .R.:

Pt. 404:

Subpt. J:

cece eceoN NN WN WNW

Subpt. P:

Section 404.1520(a)(4)

Section 404.1520(a)(4(i){v)

Section 404.1560(c)(1)

Section 404.1560(c)(2)

Section 404.1566(e)

Section 404.1569

App. 2

~- & & & & WS Ww

Pt. 416:

Subpt. I:

Section 416.920(a)(4)

Section 416.920(a)(4)(i)(v)

Section 416.960(c)(1)

Section 416.960(c\(2)

~ & © &

Regulations and rules—Continued: Page

Section 416.966(e) 4

Section 416.969 4

Subpt. N:

Section 416.1400 .00...0......cccccccceeee

Section 416.1400(a)(1)

Section 416.1400(a)\(2)

Section 416.1400(a\(3)

Section 416.1400(a)(4)

Section 416.1429

Section 416.1435

Section 416.1449-416.1450

Section 416.1450

Fed. R. Evid.:

Rule 702 --. 8, 14

Rule 702 advisory committee’s note

(2000 Amendments) 11, 12

Rule 703 12

Sup. Ct. R. 10 10, 12

Miscellaneous:

Soc. Sec. Admin., Vocational Expert Handbook

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

experts/Vocational Experts (VE) Handbook-

508.pdf. 17, 18

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

U.S. Dep’t of Labor, Dictionary of Occupational

Titles (4th ed. rev. 1991), https://www.oalj.dol.

gov/LIBDOT.HTM 4

ceecennndNN

In the Supreme Court of the United States

No. 17-1184

MICHAEL J. BIESTEK, PETITIONER

NANCY A. BERRYHILL, ACTING COMMISSIONER,

SOCIAL SECURITY ADMINISTRATION ''

ON PRTITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-23a)

is reported at 880 F.3d 778. The opinion of the district

court adopting the magistrate judge’s report and recom-

mendation (Pet. App. 25a-34a) is not published in the

Federal Supplement but is available at 2017 WL 1173775.

The magistrate judge’s report and recommendation

(Pet. App. 35a-74a) is not published in the Federal Sup-

plement but is available at 2017 WL 1214456.

JURISDICTION

The judgment of the court of appeals (Pet. App. 24a)

was entered on December 27, 2017. The petition for a

writ of certiorari was filed on February 21, 2018. The

' Respondent’s title is corrected to reflect her current position in

accordance with Supreme Court Rule 35.3.

(1)

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. a. The Social Security Act (Act), 42 U.S.C. 301

et seq., authorizes the payment of Social Security Disa-

bility Insurance (SSDI) and supplemental security in-

come (SSI) benefits to certain individuals with disabili-

ties. 42 U.S.C. 423(a)(1XE) (SSDD; 42 U.S.C. 138la

(SSD. As relevant here, the Act defines “disability” to

cal or mental impairment” that is expected to result in

death or to last at least 12 months. 42 U.S.C. 423(d)(1)(A),

1382c(aX(3)(A). To qualify as “disab{led],” an individual's

physical or mental impairment must be of “such severity

that he is not only unable to do his previous work but can-

not, considering his age, education, and work experience,

engage in any other kind of substantial gainful work which

exists in the national economy.” 42 U.S.C. 423(d)(2)(A),

1382e(aX(3)(B).

The Social Security Administration (SSA) adjudicates

disability claims through a multi-step administrative re-

view process. See 20 C.F.R. 404.900 (SSDI); 20 C.F.R.

416.1400 (SSI). A claimant for benefits first receives an

initial determination, and if dissatisfied, the claimant

may request reconsideration. 20 C.F.R. 404.900(a)(1)

| (2), 416.1400(a)(1) and (2). If dissatisfied with the

reconsideration determination, the claimant may then

request a hearing before an administrative law judge

(ALJ). 20 C.F.R. 404.900(a\(3), 416.1400(a)(3). And if

dissatisfied with the AL.J’s decision, the claimant may re-

quest review by the Appeals Council in SSA. 20 C.F.R.

404.900(a)(4), 416.1400(a)(4). At each of those levels, “the

agency operates essentially, and is intended so to do, as

an adjudicator and not as an advocate or adversary.”

Richardson v. Perales, 402 U.S. 389, 403 (1971).

Recognizing the non-adversarial nature of this scheme,

the Act provides 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). Thus, “strict rules

of evidence *** are not to operate at social security

hearings so as to bar the admission of evidence otherwise

pertinent.” Richardson, 402 U.S. at 400. “(The conduct

of the hearing rests generally in the examiner’s discre-

tion,” subject to “hearing procedures” established by

agency regulation. /bid. And the agency’s findings of

fact, “if supported by substantial evidence,” are “conclu-

sive” for purposes of judicial review. 42 U.S.C. 405(g).

b. To determine whether a claimant is entitled to dis-

ability benefits, the SSA employs a five-step sequential

evaluation process. 20 C.F.R. 404.1520(a)(4) (SSDI);

20 C.F.R. 416.920(a)(4) (SSD); see Barnhart v. Thomas,

540 U.S. 20, 24-25 (2008) (describing this process). The

agency must determine, first, whether the claimant is per-

forming substantial gainful activity (in which case he is

not disabled); second, whether the claimant’s impairment

is “severe”; third, whether that impairment meets or med-

ically equals an impairment listed in SSA regulations;

fourth, if the impairment does not meet or medically equal

the listings, whether the claimant’s residual functional ca-

pacity allows him to perform his past work; and fifth,

whether the claimant is unable to perform other work.

20 C.F.R. 404.1520(a)4\i4v), 416.920(a4Xi4v). The

claimant bears the burden of providing evidence at each

of the first four steps, while the agency bears that burden

at step five.

At step five, the agency must determine whether other

work exisis “in significant numbers in the national econ-

omy” that the claimant can perform, given his residual

functional capacity, age, education, and work experience.

20 C.F .R. 404.1560(c)(1), 416.960(c)(1). SSA has adopted

medical-vocational guidelines under which, if a claim-

ant’s characteristics correspond to the criteria of a rule,

the guidelines direct a conclusion regarding whether work

exists that a claimant can perform. 20 C.F.R. Pt. 404,

Subpt. P, App. 2; see Heckler v. Campbell, 461 U.S. 458

(1983); 20 C.F.R. 404.1569, 416.969. In other circum-

stances, the ALJ may rely upon the testimony of a voca-

tional expert. See 20 C.F.R. 404.1560(c)(2), 404.1566(e),

416.960(c)(2), 416.966(e). The ALJ typically poses hypo-

thetical questions asking the vocational expert to identify

the types and numbers of jobs that could be performed by

a person of the claimant’s age, education, and work expe-

claimant’s functional capacity. Cf. Pet. App. 41a.

In answering those questions, vocational experts may

rely on various sources of information. To identify the

types of jobs a claimant could perform, vocational ex-

perts often rely on a U.S. Department of Labor publica-

tion, the Dictionary of Occupational Titles (4th ed. rev.

1991) (Dictionary). The Dictionary “gives a job type a

specific code—for example, ‘295.467-026 Automobile

Rental Clerk’—and establishes, among other things, the

quired to perform that job.” Brault v. Social Sec. Ad-

min., 683 F.3d 443, 446 (2d Cir. 2012) (per curiam). Al-

though the Dictionary “defines jobs,” it “does not report

how many such jobs are available in the economy.” /bid.

(emphasis omitted). To determine the number of posi-

tions that are available for a particular job type, the vo-

cational expert may rely on her professional knowledge

and experience and various other sources of information,

including fedora! or state government publications.

2. Petitioner worked as a carpenter and construction

laborer until 2005. Pet. App. 3a. In 2010, petitioner ap-

plied for SSDI and SSI benefits with an alleged disability

onset date in October 2009. /bid. Petitioner alleged that

his disabilities included degenerative disc disease, Hep-

atitis C, asthma, and/or depression. /d. at 3a, 37a.

After extensive administrative proceedings (see Pet.

App. 3a-4a, 75a-78a), the ALJ concluded that

was “not disabled” prior to May 2013. /d. at 113a; see id.

at 78a-79a, 109a-112a. The AL.J determined that peti-

tioner’s impairments were severe, but that they did not

meet or medically equal any of the listings. /d. at 83a-89a.

And upon considering petitioner's age, education, work

experience, and residual functional capacity, the ALJ de-

termined that, prior to May 2013 (when petitioner turned

50 years old), petitioner was capable of performing work

that existed in significant numbers in the national econ-

omy. /d. at 109a-112a.*

As relevant here, in performing the step-five inquiry,

the ALJ relied upon “the testimony of [a] vocational ex-

pert.” Pet. App. 112a; see id. at 11la-112a. The voca-

tional expert testified that a hypothetical person with

petitioner’s characteristics could perform sedentary

work such as bench assembler, for which the expert es-

timated there were 240,000 jobs nationally, and sorter,

for which there were 120,000 jobs nationally. /d. at

* Once petitioner reached age 50, the agency’s medica) vocationa!

guidelines directed a finding that he became “disabled.” Pet. App.

113a; see id at 109a, 112a-1 13a.

lila, 116a.* The vocational expert based her testimony

upon the Dictionary; data from the Bureau of Labor

Statistics; and her 11 years of professional experience

as a vocational rehabilitation consultant, which included

interviewing employers, performing on-the-job analyses,

and conducting labor market surveys. /d. at 20a, 28a,

70a, 117a-119a.

During cross-examination, petitioner’s counsel asked

the vocational expert to produce data supporting her

professional opinions. Pet. App. 28a, 118a-119a. The vo-

cational expert explained that her opinions were based in

part upon “job analysie|s” and “labor market surveys”

that were performed for individual clients and which

were “part of [their] private confidential files.” /d. at

118a-119a. The ALJ then indicated that the vocational

expert would be permitted to testify based upon her pro-

fessional experience without producing “her confidential

file[s!” pertaining to “individual people.” /d. at 118a.

3. Petitioner brought suit challenging the AL.J’s de-

cision on various grounds, and a magistrate judge recom-

mended upholding the AL.J’s decision. Pet. App. 35a-

74a. As relevant here (see id. at 69a-73a), the magistrate

judge explained that an AL.J is entitled to rely upon the

testimony of a vocational expert “even where that testi-

mony is not based on the | Dictionary|, but on the [voca-

tional expert’s| professional experience.” /d. at 71a; see

ibid. (noting that the “credibility of the [vocational ex-

pert’s| testimony was fully probed at the hearing”). The

* The vocational expert opined that if certain additional functional

limitations were imposed, the hypothetical person could still per

form those jobs, but the number of positions would be reduced “by

about 20 to 30 percent.” Pet. App. 117a.

district court adopted the magistrate judge’s recommen-

dation in full. /d. at 25a-3Aa.

4. The court of appeals affirmed. Pet. App. la-23a.

As relevant here, the court concluded that the ALJ did

not err in permitting the vocational expert to base her

testimony upon both the Dictionary and her “‘profes-

sional experience| |’ gained from talking with employers

and conducting job analyses.” /d. at 20a. Noting peti-

tioner’s reliance on several Seventh Circuit decisions,

see id. at 20a-21a, the court of appeals agreed that vo-

cational expert testimony cannot be considered sub-

stantial evidence if it is “conjured out of whole cloth,”

id. at 22a (quoting Donahue v. Barnhart, 279 F.3d 441,

446 (7th Cir. 2002)). But the court reasoned that the

task of “guarding against baseless testimony” does not

require “incorporating the stringent evidentiary re-

quirements embodied in the Federal Rules of Evidence.”

Ibid. The court therefore declined to endorse an ap-

proach that would “incorporatie| the essence *** of

Federal Rule of Evidence 702” into the evaluation of vo-

cational expert testimony. /d. at 20a. The court also

noted that there was “little clarity” as to how the Sev-

enth Circuit would apply its seemingly more “rigorous”

approach. /d. at 20a, 22a.

ARGUMENT

Petitioner contends (Pet. 11-24) that the court of ap-

peals erred in declining to require the ALJ, before rely-

ing upon vocational expert testimony, to require disclo-

sure of the expert’s confidential files. The court of ap-

peals’ decision is correct and does not implicate any con-

flict warranting this Court’s review. Although the court

below understood the Seventh Circuit to have adopted a

more demanding approach for evaluating vocational ex-

pert testimony, the extent to which any genuine conflict

exists among the circuits remains unclear, and petitioner

has not shown that the Seventh Circuit would reach a dif-

ferent result on the facts of this case. Moreover, in light

of recent updates to SSA guidance, any disagreement

may be of little prospective importance. The petition for

a writ of certiorari should therefore be denied.

1. The court of appeals correctly concluded that the

ALJ was permitted to credit the vocational expert’s tes-

timony, which was based upon her 11 years of profes-

sional experience as a vocational rehabilitation consult-

ant, without requiring the expert to disclose her “private

confidential files” relating to that experience. Pet. App.

118a; see id. at 20a-22a.

a. The Social Security Act provides 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). “(The conduct of the hearing rests generally

in the examiner's discretion,” in accordance with “hear-

ing procedures” established by agency regulation. Rich-

ardson v. Perales, 402 U.S. 389, 400 (1971). An ALJ there-

fore need not determine that a vocational expert has sat-

isfied the requirements for expert testimony under Fed-

eral Rule of Evidence 702, or any other evidentiary rules

applicable in court, before her testimony may be admitted

and relied upon at a disability benefits hearing. See Rich-

ardson, 402 U.S. at 400 (“[S}trict rules of evidence * * *

are not to operate at social security hearings so as to bar

the admission of evidence otherwise pertinent.”).

At the same time, SSA has recognized that ALJs

should rely upon expert testimony only if that testimony

is considered to be reliable. To that end, the agency’s

regulations allow a claimant to question a vocational ex-

pert (and other witnesses) regarding the basis for the ex-

pert’s testimony and to present arguments concerning

the reliability of that testimony. See 20 C.F.R. 404.929,

404.949-404.950, 416.1429, 416.1449-416.1450. Its regula-

tions also allow a claimant to tender conflicting evidence,

see 20 C.F.R. 404.935, 404.950, 416.1435, 416.1450, and

courts have concluded that significant inconsistencies in

such evidence should be addressed by the ALJ, see, e.g.,

Buck v. Berryhill, 869 F 3d 1040, 1052 (9th Cir. 2017) (re-

manding to the agency where “the vast discrepancy be-

tween the [vocational expert’s] job numbers and those

tendered by [the claimant], presumably from the same

source, is simply too striking to be ignored”).

In addition, SSA has provided guidance specifically on

the topic of vocational expert testimony. In a December

2000 Social Security ruling, SSA instructed that where

there is an apparent conflict between a vocational ex-

pert’s testimony and the Dictionary, the ALJ should

elicit a reasonable explanation for the conflict before re-

lying on the expert’s testimony. SSR 00-4p, 65 Fed. Reg.

75,759, 75,760 (Dec. 4, 2000). And as explained below, see

pp. 17-18, infra, SSA has recently provided updated

guidance concerning the identification of sources that vo-

cational experts rely upon in presenting job numbers.

SSA has not, however, required or suggested that an

ALJ should not permit a vocational expert to rely upon

her professional experience or that an expert must dis-

close confidential client files before she may do so.

b. The court of appeals correctly applied these prin-

ciples in rejecting petitioner’s argument that the ALJ

should have “require{d] the vocational expert to produce

data or other documentation to support her opinions.”

Pet. App. 20a. As authority for that purported require-

ment, petitioner cited a pair of decisions that appeared

to “incorporati/e] the essence, if not the explicit require-

ments, of Federal Rule of Evidence 702.” /bid. (citing

Donahue v. Barnhart, 279 F.3d 441 (7th Cir. 2002) and

McKinnie v. Barnhart, 368 F 3d 907 (7th Cir. 2004) (per

curiam)). As the court explained, however, “Congress

specifically exempted Social Security disability proceed-

ings from the strictures of the Federal Rules of Evi-

dence,” thereby “allowing ALJs to consider a broader

range of potentially relevant information than would be

admissible in an ordinary court of law.” /d. at 21a (citing

42 U.S.C. 405(b)(1)). The court thus properly declined to

adopt a judicial “rule” that would categorically preclude

an ALJ’s consideration of vocational expert testimony

based upon professional experience unless the testimony

is independently corroborated by data. /d at 22a.

At the same time, the court of appeals recognized that

an ALJ generally should “guard | against baseless testi-

mony.” Pet. App. 22a. Indeed, the court agreed with the

Seventh Circuit that “vocational expert testimony that is

‘conjured out of whole cloth’ cannot be considered sub-

stantial evidence.” /bid. (quoting Donahue, 279 F.3d at

446). The court of appeals here observed, however, that

petitioner had had the opportunity to raise objections to

the reliability of the vocational expert’s testimony, and

the court correctly explained that “{u|Itimately, responsi-

bility for weighing the credibility of witnesses belongs to

the ALJ,” ibid. Reviewing the record here, the court con-

cluded that the ALJ “in this case” had “acceptably fulfilled

that obligation.” /bid. That factbound determination does

not warrant this Court’s review. See Sup. Ct. R. 10.

c. Petitioner does not identify the basis for his asser-

tion of error in the court of appeals’ decision or in the

ALJ’s conduct of the hearing in this case. Petitioner prin-

cipally asserts that “an AL.J’s decision must be supported

by ‘substantial evidence,’” Pet. 21 (citation omitted), and

contends that a vocational expert’s professional know-

ledge categorically cannot constitute such evidence unless

detailed “supporting data” are provided upon request,

Pet. 22. But petitioner identifies no statute, regulation, or

decision of this Court that compels adoption of such a rigid

rule. On the contrary, the “‘substantial evidence’ stand-

ard” is “extremely flexible” and “gives federal courts the

freedom to take a case-specific, comprehensive view of the

administrative proceedings, weighing all the evidence to

determine whether it was ‘substantial.’"” Brault v. Social

Sec. Admin., 683 F 3d 443, 449 (2d Cir. 2012) (per curiam).

Lacking statutory or regulatory support for his pro-

posed mandatory rule, petitioner seeks (Pet. 22) to anal-

ogize to “other areals] of the law” in which, petitioner

maintains, an expert must tender “underlying data” for

her conclusions. As already explained (see pp. 2-3, 8-9,

supra), however, the determination of Social Security

disability benefits differs from other adjudicative

schemes; the Social Security Act and its implementing

regulations provide for non-adversarial, streamlined

hearing procedures in which “rules of evidence applica-

ble to court procedure” do not apply. 42 U.S.C. 405(b)(1).

Social Security disability cases thus permissibly stand

“separate and apart” from other kinds of adjudication as

a matter of express statutory and regulatory design.

Pet. 22.

In any event, petitioner’s argument aiso fails on its

own terms. Even in adjudications that (unlike Social Se-

curity disability proceedings) are governed by the Fed-

eral Rules of Evidence, an expert’s professional experi-

ence may afford a valid standalone basis for his testi-

mony. The advisory committee’s note to Rule 702 states

that “[njothing in this amendment is intended to suggest

that experience alone—or experience in conjunction with

other knowledge, skill, training or education—may not

provide sufficient foundation for expert testimony.” Fed.

R. Evid. 702 advisory committee’s note (2000 Amend-

ment); cf. Kumho Tire Co. v. Carmichael, 526 U.S. 137,

156 (1999) (“[N Jo one denies that an expert might draw a

conclusion from a set of observations based on extensive

and specialized experience.”). The Federal Rules also

specify that an expert may base an opinion upon facts or

data on which experts in the field would reasonably rely

even if the facts and data themselves are not admissible

in the proceeding. Fed. R. Evid. 708. It follows a fortiori

that professional 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.

d. Although the application of law to the facts of this

case would not independently warrant review, cf. Sup.

Ct. R. 10, petitioner also fails to offer any case-specific

argument as to why the ALJ’s step-five determination

was not supported by substantial evidence on the ad-

ministrative record in this case. The ALJ confirmed

that the vocational expert’s testimony about the types

of jobs available to petitioner was consistent with the

Dictionary, see Pet. App. 117a, and petitioner does not

argue otherwise. And although it is true that the Dic-

tionary does not address all of petitioner’s limitations

(Pet. 9-10), petitioner apparently does not dispute that

the vocational expert could supplement the Dictionary

by testifying about the types of jobs petitioner could

perform based upon her professional experience. Pet.

App. 117a-119a; see id. at 28a (noting that this aspect of

the vocational expert’s testimony was based “on her

eleven-year experience as a vocational rehabilitation

consultant”) (citation omitted).

Petitioner instead challenges (Pet. 22) the ALJ’s re-

liance on the vocational expert’s testimony about the

“number of jobs available” for the types of work that the

expert identified. Even though petitioner was afforded

the opportunity to question the expert and to tender his

own evidence, however, petitioner did not submit any

evidence that contradicted her estimates. Cf. Pet. App.

116a-119a.‘ Indeed, although petitioner sought a more

detailed explanation of the basis for the expert’s opin-

ion, petitioner did not actually dispute that she had ac-

curately estimated the number of bench-assembler or

sorter jobs available in the national economy. Cf. ibid.

And the ALJ, who was responsible for evaluating the

reliability of the vocational expert’s testimony, found

that testimony to be credible and entitled to “great

weight.” /d. at 1lla. In these circumstances, petitioner

has failed to show that the ALJ’s step-five determina-

tion was unsupported by substantial evidence.

2. The court of appeals’ decision does not implicate

any conflict warranting this Court’s review. Petitioner

acknowledges (Pet. 12-19) that the court of appeals’ deci-

sion below accords with decisions of the Second and Ninth

Circuits, see Brawlt, 683 F.3d at 449-450; Bayliss v. Barn-

* Petitioner did submit a “vocational opinion” from a different in-

dividual, but the “ALJ appropriately found that [that] opinion was

irrelevant” because it addressed jobs that were “completely differ-

ent from those which the ALJ found that [petitioner] can perform.”

Pet. App. 72a-7T3a; see id at 112a (affording “little weight” to that

individual’s opinion because “the cited jobs are not relevant” and

because the opinion assumed characteristics that were not “part of

| petitioner’s] residual functional capacity”).

hart, 427 F.3d 1211, 1217-1218 (9th Cir. 2005), but con-

tends that it conflicts with those of the Seventh Circuit.°

The two Seventh Circuit cases on which petitioner re-

lies, however—Donahue v. Barnhart, supra, and McKin-

nie v. Barnhart, supra—involved meaningfully differ-

ent circumstances.

In Donahue, as here, the Seventh Circuit upheld the

ALJ’s reliance on vocational expert testimony. There,

the vocational expert provided testimony that arguably

conflicted with the Dictionary, but the claimant failed to

identify that discrepancy at the hearing. 279 F.3d at 446.

The court ultimately concluded that the ALJ did not err

in accepting the expert’s testimony, reasoning that

“[w]hen no one questions the vocational expert’s founda-

tion or reasoning, an AL.J is entitled to accept the voca-

tional expert’s conclusion, even if that conclusion differs

from the Dictionary’s.” Ibid. The court then proceeded

to discuss, in dicta, what should happen if the vocational

expert’s conclusions are the subject of timely objection,

and suggested that in those circumstances, “the ALJ

should make an inquiry (similar though not necessarily

identical to that of Rule 702) to find out whether the pur-

ported expert’s conclusions are reliable.” Jbid.° The

® While this petition was pending, the First Circuit issued an opin-

ion expressing agreement with the decisions of the Second and Ninth

Circuits. See Purdy v. Berryhill, 887 F 3d 7, 14-17 (2018) (Souter, J.).

* Rule 702 provides that “[a) witness who is qualified as an expert

by knowledge, skill, experience, training, or education may testify

in the form of an opinion or otherwise if: (a) the expert’s scientific,

technical, or other specialized knowledge will help the trier of fact

to understand the evidence or to determine a fact in issue; (b) the

testimony is based on sufficient facts or data; (c) the testimony is

the product of reliable principles and methods; and (d) the expert

has reliably applied the principles and methods to the facts of the

case.” Fed. R. Evid. 702.

court observed that “[e}ven in court, however, an expert

is free to give a bottom line, provided that the underlying

data and reasoning are available on demand.” /bid. And

the court suggested that the vocational there had

satisfied that standard by “producling] * * * job titles

and numbers” and appearing for cross-examination,

which petitioner in that case had failed to undertake on

relevant topics. /bid.

Here, as in Donahue, petitioner’s counsel was afforded

the opportunity to cross-examine the vocational expert

about her testimony. And as in Donahue, petitioner's

questioning did not “reveal any shortcomings in the voca-

tional expert’s data or reasoning.” 279 F.3d at 447. Peti-

tioner thus fails to identify any conflict between Donahue

and the court’s decision below.

Petitioner also fails to identify any square conflict

with the Seventh Circuit’s decision in McKinnie. There,

unlike in Donahue, the court did sustain a claimant's

challenge to an ALJ’s reliance on testimony about the

“number of jobs [that] were available to [the claimant|”

after the claimant had requested, but not received, cer-

tain underlying data supporting the vocational expert’s

opinions. McKinnie, 368 F.3d at 911. There, however,

the ALJ and vocational expert had apparently agreed to

produce that data so long as the claimant “palid] for the

preparation of the/{] materials” that the claimant had re-

quested. /bid. The court rejected that condition, reason-

ing that the “[tJhe data and reasoning underlying a voca-

tional expert’s opinions are not ‘available on demand’ if

the claimant must pay for them.” /bid. (quoting Donahue,

279 F.3d at 446). McKinnie thus did not present the

question whether a vocational expert’s assumed duty of

disclosure extends to the expert’s confidential client

files. And petitioner has not identified any Seventh Cir-

cuit decision applying McKinnie in order to require the

disclosure of confidential materials. Petitioner thus has

failed to demonstrate that, had it been presented with

this case, the Seventh Circuit would have reached a dif-

ferent result than the court of appeals below.

Moreover, even in cases not involving confidential in-

formation, it is not clear to what extent the Seventh Cir-

cuit’s approach genuinely differs from that of other cir-

cuits. Both the Second Circuit and the court below indi-

cated their “agree|ment] with the Seventh Circuit that

evidence cannot be substantial if it is ‘conjured out of

whole cloth.’” Brault, 683 F.3d at 450 (quoting Donahue,

279 F.3d at 446); see Pet. App. 22a (same). Similarly, the

Ninth Circuit has emphasized that, although “‘{a] [voca-

tional expert’s| recognized expertise provides the neces-

sary foundation for his or her testimony’” and “‘no addi-

tional foundation is required,’”” a vocational expert's tes-

timony is “not incontestable.” Buck, 869 F 3d at 1051

(quoting Bayliss, 427 F.3d at 1218). That court accord-

ingly vacated and remanded an agency decision in cir-

cumstances where the “vast discrepancy between the

[| vocational expert’s] job numbers and those tendered by

[the claimant]” were “simply too striking to be ignored”

and thus required further inquiry into reliability. /d at

1052. Similarly, the Second Circuit emphasized in

Brault that it was “not hold[ing] that an ALJ never need

question reliability.” 683 F 3d at 450; see also Purdy v.

Berryhill, 887 F 3d 7, 16 & n.12 (ist Cir. 2018) (Souter,

J.) (upholding ALJ’s reliance on vocational expert testi-

mony without supporting data, but recognizing that in

some cases an expert’s methodology might be “so unre-

liable that it cannot constitute substantial evidence”).

Meanwhile, the Seventh Circuit itself has recognized

Security hearings,” and it accordingly “refuseid]” to

adopt rules of disclosure that would “drag{] out every

Social Security hearing to an interminable length Brit-

ton v. Astrue, 521 F.3d 799, 804 (2008) (per curiam).

To be sure, as petitioner notes (Pet. 10), several

courts of appeals have understood the Seventh Circuit to

have adopted a diverging approach and have suggested

that its approach “has not been a popular export.” Pet.

App. 2la (quoting Brault, 683 F.3d at 449); see also

a 887 F.3d at 16 (stating that “(t]he Seventh Circuit

stands alone *** in imposing a Dauwbert-like require-

ment on ALJs in Social Security cases”); Welsh v. Com-

missioner Soc. Sec., 662 Fed. Appx. 105, 109-110 (3d Cir.

2016) (similar). But petitioner has not shown that these

abstract expressions of disagreement have yielded

meaningfully different results. Moreover, the Seventh

Circuit cases relied upon by petitioner predate all of the

allegedly conflicting decisions, and the Seventh Circuit

may well refine or reevaluate its approach in light of the

continuing criticisms advanced by other circuits.

3. Review is also unwarranted for the additional rea-

son that SSA has recently issued updated policy guid-

ance expressing the agency’s expectation that vocational

experts testifying at ALJ hearings should be prepared to

identify and describe the factual bases for their testi-

mony. In 2017, SSA updated its Vocational Expert

Handbook, which sets forth the agency’s expectations

as to how vocational experts should prepare for ALJ-

conducted disability hearings. SSA, Vocational Expert

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

public experts/Vocational Experts (VE) Handbook-

508.pdf (Handbook). The Handbook instructs vocational

experts that they “should be prepared to provide a com-

plete explanation for [their] answers to hypothetical

questions”; that they “should have available, at the hear-

ing, any vocational resource materials [on which they|

are likely to rely”; and that they “should be able to thor-

oughly explain what resource materials [they] used and

how [they] arrived at [their] opinions.” /d at 37. The

Handbook further advises vocational experts that “[i}n

some cases, the ALJ may ask [them] to provide relevant

portions of materials [they] rely upon.” /bid.

The revised Handbook, which had not yet been issued

at the time of petitioner’s ALJ hearing, will help guide

the agency’s handling of vocational expert testimony in

future cases, so that any disagreement among the courts

of appeals may be of limited prospective importance. At

a minimum, the Handbook and the regulations cited

above (see pp. 8-9, supra) underscore that Social Secu-

rity disability claimants are already able under current

law to challenge the reliability of vocational expert testi-

mony. Petitioner cannot show that imposing the novel

mandatory rule he urges, which is not grounded in the

statutory or regulatory text, is necessar» to provide

such an opportunity.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.