Will the Supreme Court Require Vocational Experts to Disclose Their Data in Disability Hearings?

 Posted on March 28, 2018 in Social Security Disability

One of the main reasons why people are denied Social Security disability benefits is the purported existence of “other work” they can perform in spite of their physical or mental impairments. Under Social Security regulations, an individual cannot receive disability benefits if there is “substantial evidence” that they can “make an adjustment to other work.” But what exactly is this evidence?

In most cases, a Social Security administrative law judge will rely solely on the testimony of a “vocational expert” who will opine on the type and number of jobs that may be available given a particular disability applicant's situation. But oftentimes, the vocational expert's opinions are just that: personal views unsupported by actual data. Or at the very least, there is data the expert refuses to disclose to the applicant.

In 2004, the U.S. Seventh Circuit Court of Appeals—which oversees disability appeals from Illinois and two other states—said that was not good enough. The Court said that in disability hearings, like any other kind of legal dispute, it was unacceptable for “vital testimony” to be “conjured out whole cloth.” Therefore, when challenged the disability applicant, a vocational expert could be compelled to produce the “data and reasoning” supporting their opinions about the availability of other work.

Federal Courts Prioritize “Confidentiality” of Expert Data Over Disability Applicants' Rights

The Seventh Circuit's rule is a common-sense one. Yet it is the only federal appeals court to require vocational experts to disclose their data and methodology. At least three of the Seventh Circuit's sister courts have gone on record saying just the opposite: a vocational expert's opinions are “substantial evidence” even when unsubstantiated by actual data.

Most recently, the U.S. Sixth Circuit Court of Appeals in Cincinnati rejected the Seventh Circuit's standard. The disability applicant in that case has now asked the U.S. Supreme Court to intervene and resolve the split among the circuits. Obviously, the applicant wants the Supreme Court to apply the Seventh Circuit's standard on a nationwide basis.

The underlying facts of this case are fairly straightforward. The applicant is a former carpenter and day laborer. He applied for disability benefits eight years ago due to a number of impairments including degenerative disc disease in his lower back. Although an ALJ awarded disability benefits beginning in 2013, she denied benefits for the period between 2009 and 2013 largely based on a vocational expert's testimony that the applicant could have found other work as a “bench assembler” or “sorter.”

When the applicant's disability attorney asked the vocational expert to produce her analysis supporting these conclusions, he declined, citing the “confidentiality” of her files. The ALJ—and ultimately the Sixth Circuit—saw nothing wrong with this. The Sixth Circuit adopted the views of the Second and Ninth Circuits, which held that a vocational expert's opinion, standing on its own, constituted “substantial evidence” the applicant could hold down another job.

Get Help With Your Disability Claim Today

The applicant's question to the Supreme Court boils down to this: Does a vocational expert actually have to show his or her work? If the Court decides to answer that question, it could have a major impact for disability applicants living outside the Seventh Circuit. It could be several months before the Supreme Court even decides whether to hear the case—the Social Security Administration's response to the applicant's request is due at the end of April—but this case presents an ideal vehicle for resolving this long-standing split among the federal appeals courts.

In the meantime, if you are an Illinois resident seeking disability benefits, your best chance of succeeding is to work with an experienced Chicago Social Security disability attorneyhttps://www.disabilitylawyerschicago.com/contact-us. Contact Pearson Disability Law, LLC to schedule a free consultation.

Sources:

https://scholar.google.com/scholar_case?case=320956243341759940

https://scholar.google.com/scholar_case?case=16090095633490705642

https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/17-1184.html