Biestek v. Berryhill -- Some Plums to Pick

Biestek v. Berryhill, 139 S. Ct. 1148 (2019) is in the books and it is the law of land.  The proposition that the agency will lever is the restatement of substantial evidence:

Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains "sufficien[t] evidence" to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938)(emphasis deleted). And whatever the meaning of "substantial" in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is "more than a mere scintilla." Ibid.; see, e.g., Perales, 402 U. S., at 401 (internal quotation marks omitted). It means—and means only—"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison, 305 U. S., at 229. See Dickinson v. Zurko, 527 U. S. 150, 153 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).

 The question for the practitioner, that the majority did not answer, is whether 240,000 bench assembler jobs or 120,000 sorter jobs nationwide is adequate to persuade the reasonable mind.  The Court found on the uncontradicted record that the naked testimony of vocational evidence was substantial evidence.  The majority opinion observes, "And nothing in the rest of the record conflicts with anything she says."  When that happens, the claimant always loses absent frank conflict with the DOT/SCO.

There is no "gotcha" in cross-examining vocational experts.  No one question that guts the evidence spewed out.

Biestek v. Commissioner of Social Security, 880 F. 3d 778 (2018) [...] recognized that the Seventh Circuit had adopted the categorical rule Biestek proposed, precluding a vocational expert's testimony from qualifying as substantial if the expert had declined an applicant's request to provide supporting data. See id., at 790 (citing McKinnie v. Barnhart, 368 F. 3d 907, 910-911 (2004)). But that rule, the Sixth Circuit observed in joining the ranks of unconvinced courts, "ha[d] not been a popular export." 880 F. 3d, at 790 (internal quotation marks omitted). 

And no more is it so today.

No key that unravels the vocational expert testimony.

Biestek gives the out. Because the claimant loses in the absence of contradictory evidence.  The obverse is therefore the path to changing the vocational evidence into less than a preponderance of evidence.  That preserves the argument for review by the Appeals Council, District Court, Court of Appeals, or the Supreme Court that the contradicted vocational expert testimony is not substantial evidence.  Just old fashioned bare knuckle lawyering.

And of course, a different (maybe less qualified) expert failing to produce such data might offer testimony that is so feeble, or contradicted, that it would fail to clear the substantial-evidence bar.

The task of the representative at the hearing or on review to the Appeals Council is to make the vocational expert look feeble.  The representative must gut the vocational expert, from top to bottom.  

She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology.

The attack examines the survey, looks at the specific information, explores the process of extrapolation, and assesses whether the witness used a well-accepted methodology.  The agency won the battle in Biestek but cannot win the war.  The vocational experts either use a well-accepted methodology or the representative goes to the mattresses.  Of course the representative that does not eviscerate the vocational expert during the hearing or in a post-hearing submission to the agency falls below the standard of care.  Some people call that malpractice.