The Seventh Circuit decided Brace v. Saul on August 14, 2020. The opening paragraph says it all: the vocational expert's testimony was inscrutable and that does not satisfy the lenient substantial evidence standard. The problem of the black box approach to vocational expert testimony is recurrent.
In Biestek v. Berryhill, the vocational expert relied on in-house and confidential labor market surveys, which the ALJ refused to order that the VE turn over.
Biestek's attorney asked O'Callaghan "where [she was] getting those [numbers] from." [...]. O'Callaghan replied that they came from the Bureau of Labor Statistics and her "own individual labor market surveys." Ibid. The lawyer then requested that O'Callaghan turn over the private surveys so he could review them. Ibid. O'Callaghan responded that she wished to keep the surveys confidential because they were "part of [her] client files."
Without the BLS data or some description of methodology, Biestek affirmed.
In Ford v. Saul, the VE refused to provide information about the sources establishing the number of jobs testimony.
The vocational expert testified that 130,000 addresser and 9,800 ink-printing jobs existed nationwide and that Ford's RFC allowed her to perform these jobs. In response to cross-examination about how he had derived those estimates, the vocational expert stated "[m]y numbers come from a variety of sources which include the Department of Labor and the U.S. Chamber of Commerce and actually Social Security, itself, the Census Bureau, through the [International Trade Administration], supply really good numbers and, believe it or not, the state of Alaska has good national numbers." Probing the expert's conclusion regarding the number of addresser jobs, Ford's counsel asked "[w]hich publication indicated that there were that number of jobs?" The expert responded, "I don't have that information in my notes. I typically average all my sources." The counsel then asked, "What were the numbers that you averaged together to get 130,000?" Again, the expert responded, "I don't have that information in my notes, either." The expert explained that he averages the numbers from his various sources once a year, and then puts those numbers in his notes. Ford's counsel then stated he had no further questions.
Without sources form the DOL, Social Security, and Census Bureau, Ford affirmed.
The biggest difference between Brace and the decisions in Biestek and Ford is the question of methodology. Biestek and Ford asked for sources, not methods. Brace asked the "how" question. How do the sources inform your opinion about the call-out operator, semiconductor bonder, registration clerk, and counter clerk aggregated to total 140,000 jobs in the national economy. "Brace's attorney asked the vocational expert ("VE") to explain his methodology for estimating that 140,000 jobs are available in the national economy."
The ALJ reasoned that Brace did not object to the admissibility of the VE testimony. Imagine how long the hearings would last if the claimant had to object to every piece of evidence's admissibility in order to later argue that the evidence was not worthy of weight. Brace quickly rejected that vaporous statement.
The ALJ reasoned that even if the VE has off by an unknown factor, the number of jobs would still be available. Brace affirmed that substantial evidence does not find satisfaction in substantial speculation.
The lesson from Brace is simple. Representatives must ask the VE not only for the sources but also for the methodology. Then the claimant can argue that the VE testimony is not substantial on its face. Of course, submitting rebuttal evidence remains an equally mandatory approach to undermining VE testimony.
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Suggested Citation:
Lawrence Rohlfing, Brace Yourself for an Emerging Paradigm, California Social Security Attorney (August 22, 2020) https://californiasocialsecurityattorney.blogspot.com/2020/08/brace-yourself-for-emerging-paradigm.html
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