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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2018

## Text

No. 17-1184

In the Supreme Court of the United States

MICHAEL J. BIESTEK, PETITIONER
v.

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

IV

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)

~ & © &

Vv

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
v.

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)

2
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

3

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.

4

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-

5

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.

6

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.

7

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

8

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-

9

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

10

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

ll

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

12

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

13

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”).

14

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.

15

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

16

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

17

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

18

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.

19

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General

CHAD A. READLER
Acting Assistant Attorney
General

ALISA B. KLEIN
RACHEL F. HOMER
Attorneys

MAY 2018

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0818%3A03. Public record. Not legal advice.