Earlier this week, the Supreme Court decided Biestek v. Berryhill, a case we hoped would balance in favor of all disability claimants. Unfortunately, the Court did not reach the outcome we had expected.
Understanding the Disability Process
Before delving into the merits of this case, some overview of the disability process is necessary. For most disability applicants, their best hope of success is a hearing before an administrative law judge. The hearing is usually attended by the claimant, his or her attorney, and various expert witnesses, including a vocational expert (and, occasionally, a medical expert). These experts exert tremendous influence on the outcome of a hearing, particularly the vocational expert, or “VE,” who is responsible for classifying the applicant’s job history and testifying as to whether or not there are other duties the applicant can perform.
The Vocational Expert
Enter Biestek. In this case, the vocational expert testified that Biestek could perform 120,000 “sorter” jobs and 240,000 “bench assembler” jobs – the implication being that he was not disabled. When Biestek’s attorney asked how the vocational expert arrived at these numbers, she replied that they were from her own private labor market surveys. When the attorney asked to see these surveys, the vocational expert refused, and the Judge concluded that it was unnecessary. After the hearing, the Judge issued a partially favorable decision, denying some of Biestek’s benefits based on the vocational expert’s testimony. Now, the question was whether the vocational expert’s testimony could be considered “substantial evidence” to deny the claim.
At the time, we anticipated that the answer to this question would be a resounding “no.” Even during oral argument, several of the justices repeatedly expressed disbelief about the vocational expert’s job numbers, which seemed to have been “pulled out of the air.” Moreover, the government’s lawyer conceded that the administration’s own handbook actually requires the vocational expert to “be prepared to cite, explain, and furnish any sources you rely on to support your testimony.”
What Constitutes Substantial Evidence?
Yet, in a rather clumsy opinion written by Justice Kagan, the Court refused to specifically say whether or not the evidence was substantial. Rather, the opinion dealt almost entirely with the question of whether it should impose a categorical, bright-line rule that an expert’s refusal to provide supportive material “can never clear the substantial-evidence bar.” But Justice Gorsuch, with Justice Ginsburg joining him and Justice Sotomayor writing separately, pointed out that the majority overexaggerated the scope of what the Court had been asked. As the dissent pointed out, the vocational expert’s testimony was nothing more than a bare conclusion without any support whatsoever. How could the Court possibly construe this as “substantial evidence?”
That lingering question remains unanswered by the majority. Fortunately, however, the Court’s 6-3 opinion does not appear to have much precedential effect on future vocational expert testimonies, since the majority did not definitively say that the vocational expert’s testimony was, in fact, substantial evidence. Still, we see the majority’s opinion as a missed opportunity to clarify the scope of substantial evidence. Instead, as the dissent points out, the standard appears just as nebulous as it ever was, if not more.
The Social Security disability lawyers at Coats & Todd have been providing knowledgeable guidance and exceptional legal services to the residents of Texas for over 20 years. We have a comprehensive understanding of the disability process and can help you file an effective claim that bypasses the appeals process. If necessary, our legal team is prepared to represent your case all the way to the Supreme Court.