High Court Backs Social Security Expert Who Didn’t Include Data

The Supreme Court is seen at sunset in Washington on Jan. 24, 2019. (AP Photo/J. Scott Applewhite)

WASHINGTON (CN) – Upholding a Social Security determination against a retired carpenter, the Supreme Court ruled 6-3 Monday that the expert did not need to present data in support of her testimony.

Michael Biestek took the case to Washington after making an unsuccessful demand for disability benefits.

Though Biestek claimed that he unable to work because he suffered from degenerative disc disease, Hepatitis C and depression, a vocational expert testified against Biestek in proceedings before the Social Security Administration.

Relying on her own labor-market surveys, the expert described types of work that Biestek could still do. She suggested that Biestek could perform jobs that required him to occasionally squat and lift up to 10 pounds, but the expert declined to provide the surveys to Biestek’s attorney upon request.

Biestek claimed that the administrative law judge could not consider the testimony as substantial evidence, but a federal judge disagreed, as did the Sixth Circuit.

Affirming that result as well on Monday, Justice Elena Kagan wrote for the majoirty that Biestek’s push for a categorical rule barring all testimony from experts who refuse to disclose their data doomed his claim.

“Even though the applicant might wish for the data, the expert’s testimony still will clear (even handily so) the more-than-a-mere-scintilla threshold,” the opinion says.

Justice Neil Gorsuch argued in dissent meanwhile that the Social Security Administration bears the burden of proof in denying disability benefits.

“If clearly mistaken evidence, fake evidence, speculative evidence, and conclusory evidence aren’t substantial evidence, the evidence here shouldn’t be either,” Gorsuch wrote.

Gorsuch described the expert’s evidence as the sort that courts have long determined does not qualify as substantial.

“And thanks to its conclusory nature, for all anyone can tell it may have come out of a hat – and, thus, may wind up being clearly mistaken, fake, or speculative evidence too,” says the dissent, which Justice Ruth Bader Ginsburg joined.

For Gorsuch, the Seventh Circuit got it right when it issued a categorical rule barring vocational expert testimony where supporting data is not provided.

The majority called that rule too broad, however, and noted that Biestek had not asked the court to determine whether the evidence in his case in particular was insufficient.

Supreme Court Justice Sonya Sotomayor dissented separately, saying the administrative law judge in Biestek’s case had thwarted effective cross-examination by shutting down Biestek’s attorney when he asked whether the expert would turn over the data after redacting sensitive information.

“The result was that the expert offered no detail whatsoever on the basis for her testimony,” Sotomayor wrote.

In her view, the administrative law judge should not have counted the expert’s testimony alone, without the surveys themselves, as substantial evidence.

Jenner and Block attorney Ishan Bhabha, who represents Biestek, did not return an email seeking comment on Monday’s opinion.

The Department of Justice also did not return a request for comment.

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