In Biestek v. Berryhill the Supreme Court will consider whether a Social Security judge erred when she failed to require the vocational expert to produce evidence that, in part, formed the basis for her testimony that there were a significant number of jobs the claimant could perform despite his limitations. Specifically, when asked on cross-examination by the claimant’s representative (we did not represent this claimant at his hearing) to explain the basis for her opinion that there were a significant number of jobs the claimant could perform, the vocational expert explained that she based her opinion on a combination of sources, one of which was a study she had personally done of the local job market. When asked to produce this study, the vocational expert stated that it was confidential (even though it could have been easily redacted) and the Social Security judge denied the claimant’s request that the vocational expert be ordered to produce it. She then issued her decision denying the claimant’s claim for benefits altogether.
The district court in Michigan and the Sixth Circuit Court of Appeals held that the Social Security judge did not err in failing to require the vocational expert to produce this evidence, which set up a “Circuit split” between the Sixth Circuit’s decision and the Seventh Circuit’s decision 15 years ago in McKinnie v. Commissioner, Social Security. McKinnie held that any data, information, or study, relied upon by the vocational expert to support his/her testimony must be made “available on demand.” As some readers may know, one of the reasons the Supreme Court will take a case (it only takes about 100 cases per year) is when the circuit courts disagree about an issue that the Supreme Court believes is an important one for there to be uniformity among all the circuits.
As mentioned above, OBL did not represent the claimant at his hearing and, technically speaking, still does not represent him. Rather, Karl Osterhout was asked by the National Association of Disability Representatives (NADR) to assist it in filing an “amicus brief,” (a “friend of the court” brief), a brief to the Supreme Court in which an individual or organization with a vested interest in the outcome of the case can submit a brief in support of its position on how the case should be decided. NADR is a professional organization of Social Security representatives which sponsors several events per year geared toward networking and continuing legal education and easily qualified as an organization with a vested interest in the outcome of this case, since Biestek has numerous possible ramifications for how vocational expert testimony is used in Social Security cases, particularly how it is used when the claimant’s claim is denied.
Mr. Osterhout had the distinct privilege of working closely with Wilkinson Walsh + Eskovitz, a Washington DC boutique firm specializing in high-stakes litigation, including Supreme Court appeals. Moreover, WWE graciously agreed to assist in the brief writing without charging its usual fee for doing so. The position taken in the NADR brief is one, we hope, that will be appealing to the Court in that it suggests that there is a very narrow way to decide the case without getting into the significant complexities of vocational expert testimony in Social Security disability claims.
Oral argument is scheduled in Biestek on December 4; at that point, it is anybody’s guess when the Court’s decision will be released, but it should be issued before the Court convenes for the summer in early June 2019.