Wednesday, July 11, 2018

Declaring Victory in the Numbers Game

 Some have asked me, "do you win at the numbers game?"  The answer in the past has been, "sometimes."  I announce today that we are well on our way to winning the numbers game.

The Social Security Administration issued a Vocational Expert Handbook effective August 2017.  In that Handbook, the Commissioner tells the vocational experts that testified that they “should be prepared to cite, explain, and furnish any sources” that the vocational expert relies on to support “testimony.”  Handbook, p. 3.  The Handbook directs the vocational expert to use, know how to use, and be able to use the DOT, County Business Patterns, and the Occupational Outlook Handbook.  Handbook, pages 8-9.  The Handbook states that the vocational expert should “be prepared to cite, explain, and furnish any sources upon which” the vocational expert relies for the testimony.”  Handbook, p. 19.  The Handbook emphasizes with an “again” statement directing the vocational expert to “be prepared to cite, explain, and furnish any sources” relied upon in support of the testimony given.  Handbook, page 20.  The Handbook reiterates with the “as noted above” statement that the vocational expert should be “prepared to cite, explain, and furnish any sources” relied upon in the testimony given.  Handbook, p. 28.  In the discussion of work experience, the vocational expert must “be prepared to cite, explain, and furnish any sources” relied upon in the testimony given.  Handbook, p. 31.

 The Handbook permits the vocational expert to include data not found in the DOT.  Handbook, pages 38.  When the vocational expert relies upon data outside of the DOT, the vocational expert must “be prepared to explain why [the] sources are reliable.”  Id.  The Commissioner continues, noting that the vocational expert should “maintain easy access to any sources you rely upon, as the ALJ, claimant, or representative may have questions about your sources.”  Handbook, page 38.  Bayliss v. Barnhart is contrary to agency policy.

 In opposing certiorari before the Supreme Court in Biestekv. Berryhill, the Solicitor General writes:
           
SSA has recently issued updated policy guidance expressing the agency’s expectation that vocational experts testifying at ALJ hearings should be prepared to identify and describe the factual bases for their testimony.  In 2017, SSA updated its Vocational Expert Handbook, which sets forth the agency’s expectations as to how vocational experts should prepare for ALJ conducted disability hearings. SSA, Vocational Expert Handbook (Aug. 2017), [https://www.ssa.gov/appeals/public_experts/Vocational_ Experts_(VE)_Handbook-508.pdf] (Handbook). The Handbook instructs vocational experts that they “should be prepared to provide a complete explanation for [their] answers to hypothetical questions”; that they “should have available, at the hearing, any vocational resource materials [on which they] are likely to rely”; and that they “should be able to thoroughly explain what resource materials [they] used and how [they] arrived at [their] opinions.” Id. at 37. The Handbook further advises vocational experts that “[i]n some cases, the ALJ may ask [them] to provide relevant portions of materials [they] rely upon.” Ibid.

The revised Handbook, which had not yet been issued at the time of petitioner’s ALJ hearing, will help guide the agency’s handling of vocational expert testimony in future cases, so that any disagreement among the courts of appeals may be of limited prospective importance. At a minimum, the Handbook and the regulations cited above (see pp. 8-9, supra) underscore that Social Security disability claimants are already able under current law to challenge the reliability of vocational expert testimony. Petitioner cannot show that imposing the novel mandatory rule he urges, which is not grounded in the statutory or regulatory text, is necessary to provide such an opportunity.

The Solicitor General speaks for the United States, including the Social Security Administration.  The ALJ cannot rely on Bayliss to the exclusion of the requirements of the Handbook because the SG imposes that obligation on the VE and the ALJ.  

The pregnant question implicit in the SG brief  is one of deference.  Does the Handbook warrant deference as a constructions of the administrative notice and vocational expert regulations.  If the Handbook warrants respect deference under Skidmore, then the obligation to turn over the foundational data applies.  If the Handbook gets no deference, then the courts' interpretations that vocational expert testimony needs no foundation would remain the law of the law. 
This is the merger of my two favorite legal topics -- vocational expert testimony and the concept of deference to sub-regulatory pronouncements of the Commissioner.  On the latter, the philosophy is plain -- don't print it and make it available if it isn't true, don't lie to the public. 

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