The United States Supreme Court is set to hear argument in Biestek v. Berryhill on December 4, 2018. Although it may seem like an innocuous Social Security case at first glance, the due process implications for those seeking Social Security benefits could be astounding.
An application for Social Security benefits is subject to a
five-step review process by an Administrative Law Judge (ALJ).
The claimant bears the burden of proof to establish satisfaction with the first
four steps in the process.
In the fifth and final step, the burden of proof shifts to the government.
Essentially, the first four steps establish that the applicant has a qualifying
whereas the final step asks the Commissioner of Social Security to prove
whether significant numbers of other jobs exist that the claimant can perform
given the disabilities alleged in the first four steps.
If the claimant can participate in such other work, the application for
benefits is denied.
concerned with that final step and the testimony of a “vocational expert.”
A vocational expert is an individual who can be used to give opinion to meet
the Commissioner’s burdens on step five of the analysis.
During the hearing process, counsel for Michael Biestek, the petitioner in the
case, asked the vocational expert to “produce underlying data or analyses” that
would support the vocational expert’s opinion.
The vocational expert “refused to provide [documents] in any form out of
concern for the confidentiality of her files”.
The ALJ declined to provide redacted versions of the documents with the
The Sixth Circuit Court of Appeals upheld this decision,
rejecting the Seventh Circuit’s decision to make said documents available
and joining the Second, Third, and Ninth Circuits.
The petitioner relies on Richardson
v. Perales as the key to their argument.
There is one fascinating ripple that is posited in Perales that one amicus brief
from the National Organization of Social Security Claimants’ Representatives,
AARP, & AARP Foundation believes creates a due process incentive to hold in
favor of the petitioner.
If the key holding in Perales is that
due process is afforded to medical opinions used against claimants, then such
due process is not afforded when a vocational expert testifies to an ALJ.
The effect of that disparity in power is clear: review of the ALJ’s decision
gives complete deference to the ALJ’s treatment of the vocational expert
because it places credibility on the vocational expert and not the vocational
The amici points
to one case in particular in its analysis: a Seventh Circuit Court of Appeals
case applying the side of the split the Sixth Circuit declined to follow.
In Britton v. Astrue,
the Seventh Circuit upheld the ALJ’s decision to reject counsel’s continued
requests for more data from a vocational expert.
Instead, the Seventh Circuit suggested a balancing approach that would
“encourage ALJs and the Social Security bar to cooperate” to allow the entrance
of the vocational expert’s data.
The Seventh Circuit also suggested that the ALJ play a role in sustaining the
confidentiality of the vocational expert.
This thread of argument in Biestek could become an interesting exchange in oral argument. If
the Court were to latch onto the amici
curiae brief’s argument of due process, then they may find a solution to
the circuit split that properly balances the due process interests of both the
Social Security Commission and the numerous claimants filing applications for
Staff Editor, Kentucky Law Journal,
Volume 107; J.D. Candidate, The University of Kentucky College of Law (2020);
B.A., North Central College (2017).
 Biestek v. Comm’r of Soc. Sec., 880 F.3d 778 (6th Cir. 2017) cert granted sub nom. Biestek v. Berryhill, 138 S. Ct. 2677 (June 25, 2018).
Biestek v. Berryhill, SCOTUSblog, http://www.scotusblog.com/case-files/cases/biestek-v-berryhill/
(last visited Oct. 20, 2018).
Biestek v. Comm’r of Soc. Sec., 880 F.3d 778, 791 (6th Cir. 2017). (Stating
that there is “no reason to suppose that the ALJ did not carefully weigh the
credibility of witnesses who testified, and the ALJ’s acceptance of [the
vocational expert’s] testimony cannot be said to have been improper.”) (quoting
Sias v. Sec’y of Health & Human Servs., 861 F.2d 475, 481 (6th Cir. 1988)).
Thus, the Court states that ALJ is responsible for weighing the credibility of
witnesses, who in this case acceptably fulfilled that obligation, id.