bill@thecomingwave.comMay 26, 2020



Before I tell you about the Supreme Court case, let me tell you something that really happened to me in court this week. It’s related.

I had a vocational expert testify that an individual who cannot be exposed at work to extremes of temperature or humidity still could work full time as a Parking Lot Attendant. In Buffalo, New York. The expert said that jobs in that occupation – every single one, without exception – are done in a climate controlled booth.

When I asked her for studies or other, y’know, facts? to support that, she gave the “my testimony is based solely on my experience” mantra.

When I pressed her on how many parking lots she had observed in a professional capacity, she began the “Never in my life have I been so insulted as to have my testimony questioned” routine. This was from someone whose resume proclaimed her experience in testifying in court. An obvious plea to the judge to protect her.

I thought she was about to say “Trust me, I’m from the government and I’m here to help you”.

Okay, the Supreme Court case.

Last month the U.S. Supreme Court agreed to put Biestek v. Berryhill, a Social Security Disability case, on their October 2018 calendar. What it boils down to is this: Do the government’s vocational experts have to back up their testimony with facts? Or can the government deny benefits based only on the expert’s unsupported statements?

Social Security Disability claimants have the burden of proving their limitations. However, once the government concedes that someone with those limitations cannot perform their past work, the burden shifts to the government to prove that the claimant can do other work in a “significant number” of positions in one or more occupations. The government needs vocational expert testimony to deny a large percentage, maybe the majority, of the claims that it denies.

When Social Security was under the gun by Congress a few years ago to deny more hearings (Congress didn’t want to do anything itself about Social Security because it’s politically risky), one of the steps Social Security took was to change how vocational experts were used.

It had only been paying for them when the administrative law judge thought they were appropriate for the case. Starting about three years ago, they have been called in EVERY SINGLE CASE. Obviously the way the government has used its experts has paid off because the hearing approval rate nationwide for all applicants (represented and unrepresented) has dropped from the mid-60% range to below 40%.

The government used to require vocational experts to give numbers of jobs in the region where the claimant lives, or in several other regions of the country. Now it accepts nationwide numbers, and the expert uses reference material which can lump together multiple occupations besides the one they gave. So much for the burden of proof for numbers of jobs within a narrow set of limitations.

The vocational experts used to be asked about studies which supported their opinion. Now, the experts all know that they can get away with just citing their experience, without facts.

They were told as much. Nothing else explains the sudden uniform change in their testimony.