In Biestek v. Berryhill the Supreme Court upheld the partial denial of Social Security Disability Insurance (SSDI) benefits to a claimant based on the opinion of a vocational counselor that the employee could find work in the national economy. The Supreme Court upheld the denial of benefits despite the fact the vocational counselor would not disclose the data that supported her opinion and the ALJ refused claimant’s request for the counselor to reveal the data that formed her opinion.

What interested me in the case, in addition to the vocational rehabilitation issue, was the dissent authored by Justice Gorsuch that was joined by Justice Ginsburg. Viscerally I liked the powerful language of the Gorsuch dissent in a case where I disagreed with the result. After all in a SSDI case the government has the burden to prove the availability of work once a claimant proves impairment. I can’t imagine not being able not being able to evaluate the foundation an adverse opinion. (Particularly an opinion that concluded there was low-skill, light duty manufacturing work available during the Great Recession of the late 2000s/early 2010s)

But ultimately the majority relied on the very deferential “substantial evidence” standard in upholding the denial of benefits. The more I think about the case, I think Justice Sotomayor’s separate dissent was better reasoned, if more nuanced and less emotionally resonant than Gorsuch’s dissent. Nonetheless, I think there are some important takeaways from Biestek.

1. The war on SSDI continues — The Biestek decision indicates that appellate courts will be even more reluctant to reverse denials of benefits. The Biestek decision comes on the heels of anti-applicant legislation and administrative rule changes, rooted in elite consensus against SSDI, that began in the late Obama administration and have accelerated in the Trump administration.

The extreme deference to ALJs could be troublesome in the wake of the Lucia v. SEC decision. In that decision the Supreme Court held it was unconstitutional under the appointments clause to hire ALJs as civil service employees rather than have them appointed by the exectuvie branch. In the wake of the Lucia decision, the Trump administration has decided to change how ALJs are appointed. This has raised concerns that ALJs will be politicized and biased against applicants. The Biestek decision could give politicized ALJs a greenlight to deny benefits without fear of reversal.

2. There are some advantages for plaintiffs in proceedings governed by the rules of civil procedure.  One advantage of administrative type hearings like SSDI are relaxed rules of evidence and procedure that can make it less costly to pursue a claim. But since the rules of civil procedure don’t apply in SSDI, an applicant can be denied benefits on evidence that wouldn’t pass muster in a civil proceeding. 

Thankfully in Nebraska workers compensation, the rules of civil procedure apply (See NWCC Rule 4) and a plaintiff is free to investigate in detali the basis for an opinion made by a vocational counselor.

3. Confidentiality has run amuck in litigation — In Biestek, the ALJ agreed that a vocational counselor could claim confidentiality as a legitimate reason not to disclose the basis for their conclusion that the plaintiff could work. In that regard, Biestek is consistent with a push by corporate defendants to keep court papers and proceedings confidential. I recommend a recent article by Reuters about how confidentiality n litigation helped exacerbate the opioid crisis. I think corporate defendants abuse claims of confidentiality in the litigation process.  The Biestek decision seems to implicitly approve these practrices

4. Biestek could be a good summary judgment case for plaintiffs — The Gorsuch dissent drew parallels between the substantial evidence standard used in administrative proceedings and the substantial evidence standard in summary judgment. But reading between the lines it seems the majority in Biestek believes the substantial evidence standard is a more relaxed evidentiary standard than is believed by Justice Gorsuch.

One study shows that rougly 90 percent of employment law cases are dismissed on summary judgement. Clarification from the Supreme Court that substantial evidence is a relatively relaxed evidentiary standard, could make federal judges less likely to grant summary judgment motions.