The US Supreme Court recently ruled on a case involving a longstanding rule out of the Seventh Circuit that required a vocational expert (VE) to provide the data supporting his/her testimony. If the VE could not provide such data, or refused to do so, that testimony would not be considered “substantial evidence” to support an unfavorable decision. In a narrow ruling, the Court struck down that rule while leaving open the possibility that an Administrative Law Judge (ALJ) may still be required to acquire that data.
Writing for the Court, Justice Kagan noted that the plaintiff’s argument failed
because it pushed for an extension of the Seventh Circuit rule nationwide.
Justice Kagan stressed that a VE’s refusal to disclose data supporting his/her
opinion can still prove fatal. When a federal court reviews an ALJ decision,
there must be enough evidence to prove that a “reasonable mind” would accept
the VE’s testimony. Where the record and the VE testimony create adequate doubt
about the testimony, the lack of supporting data can lead to the ALJ decision
There has been inconsistent application of this decision reported since its
issuing. Many ALJs have been reported to cite this decision to prevent
claimants or representatives from requesting supporting data. In other
situations VEs have cited to this decision on their own to refuse to provide
their supporting data. While it will be at least a year before any of these
cases come up for review in federal courts, applying Judge Kagan’s decision in
this manner clearly appears erroneous.
When addressing VE issues, there will still be many avenues to attack unfavorable
testimony. The largest point of contention remains job numbers, especially when
the VE alters those numbers in any way. While ALJs give great deference to
published job numbers, VEs will often testify that they have altered those
numbers based on their “experience.” The vast majority of VEs will not have
experience gathering vocational data on a nationwide level. Instead, they will
have performed “labor market surveys” for individual clients in the areas where
they worked. VEs will be applying that data to the nationwide numbers that for
which the ALJ is usually asks. That would be the perfect situation in to attack
the reliability of the VE testimony, and an experienced Social Security lawyer
will be able to use this to help clients.