Logo Placeholder

Social Security; disability claim; substantial evidence; basis for expert’s opinion

by | May 6, 2019 | Employment & Labor Law

Biestek v. Berryhill, Acting Commissioner of Social Security, ___ U.S. ___, No. 17-1184 (1 April 2019).

For many years, Michael Biestek was a construction worker.  Because of the rigors of the work, he developed medical problems: degenerative disc disease, Hepatitis C, and depression.  Eventually, he stopped working and applied for social security disability benefits.

To determine whether an applicant is entitled to disability benefits, the Social Security Administration (SSA) may hold a hearing to determine the kind and number of jobs available for someone with the applicant’s disability and other characteristics.  The SSA’s factual findings on that score are conclusive in judicial review of the benefits decision, provided that the findings are supported by substantial evidence.  42 U.S.C. §405(g).

In Biestek’s case, the SSA appointed an Administrative Law Judge (ALJ) to hold a hearing on Biestek’s application.  Although such hearings are recognizably adjudicative in nature, many of the rules governing such hearing are less rigid than those a court would follow. See Richardson v. Perales, 402 U.S. 389, 400-401 (1971).  Most notably, an ALJ may receive evidence in a disability hearing that would be inadmissible in court.

ALJs often seek the views of vocational experts, who are professionals under contract with SSA to provide impartial testimony in agency proceedings.  Many vocational experts simultaneously work in the private sector locating employment for persons with disabilities.  When testifying, the experts may invoke not only publicly available sources but also information obtained directly from employers and data otherwise developed through their own work experience in job placement and career counseling.

At Biestek’s hearing, the ALJ asked a vocational expert to identify sedentary jobs that a person with Biestek’s disabilities, education, and job history could perform.  On cross-examination, Biestek’s attorney asked the expert to describe the sources of her information.  The expert testified that her information came from the Bureau of Labor Statistics and her own labor market surveys.  The lawyer requested that she turn over her private surveys so that he could review them, and she declined because they were part of her “client files.”  The ALJ ruled that he would not require the expert to produce her files, even redacted copies of her files.

The ALJ issued a decision granting Biestek’s application in part and denying it in part.  The ALJ based his decision on the expert’s testimony about the availability in the economy of sedentary unskilled occupations suitable for Biestek.

Biestek sued in U.S. District Court and contended that the expert’s testimony could not possibly constitute substantial evidence because she had declined, upon request, to produce her supporting data.  The District Court rejected Biestek’s argument and the Sixth Circuit affirmed.  The question presented to the Supreme Court was whether the expert’s refusal to provide the data underpinning her opinion “categorically” precluded her testimony from counting as “substantial evidence.”

The phrase “substantial evidence” is a “term of art” used to describe how courts are to review agency fact-finding. T-Mobile South, LLC v. Roswell, 574 U.S. ___, ___ (2015)(slip op., at 7).  Under the substantial evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficient evidence” to support the agency’s factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).  The threshold for such evidentiary sufficiency is not high.  The Court has said that substantial evidence is “more than a scintilla.” Id.; see, e.g., Richardson v. Perales, 402 U.S. 389, 401 (1971).  It means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229.

Biestek proposed a categorical rule.  If a vocational expert refuses to produce supporting data, then the expert’s testimony can never be substantial evidence.  However, Biestek said that his proposed rule would only kick in if the applicant demanded the expert’s supporting data.  In other words, the expert’s testimony could be substantial evidence if the litigant did not request the supporting data, but would not be substantial evidence if the litigant did request the data and the expert refused to produce the data.

The Court said that Biestek’s proposal made no sense.  If an expert’s testimony is substantial evidence (more than a scintilla) absent a request for supporting data, then it is not transformed into less than substantial evidence (less than a scintilla) if the supporting data is requested and not produced.  The expert’s testimony, itself, is either substantial or not, independent of a request for, and nondisclosure of, the supporting data.

Whether the expert’s testimony is substantial evidence depends on the substance of the testimony, not on a request for the underlying data.

The Court said that a refusal to produce supporting data is relevant to the expert’s credibility, and the ALJ can draw an adverse inference from the expert’s refusal to disclose supporting data; however, the ALJ is not required to draw an adverse inference in all cases.  That falls within the ALJ’s discretion.  The ALJ could also decide that supporting data must be disclosed to permit effective cross-examination, but there is no categorical rule that effective cross-examination requires disclosure of supporting data in all cases.  Substantial evidence is determined case-by-case, and a reviewing court usually should defer to the ALJ, who has seen the testimony up close.

Justice Kagan delivered the opinion for the Court.  Justice Sotomayor dissented, and Justice Gorsuch rote a separate dissent joined by Justice Ginsburg.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at [email protected].