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A Standard Applicable to the VE That Will Ensure Adequate Level of Protection

Posted by attorney Nathaniel Hubley

With the seemingly high degree of deference given to the ALJ with regard to evidentiary matters in Social Security Disability Proceedings and the relatively broad credibility granted to the VE's testimony, the question bound to arise is whether an adequate level of fairness is afforded disability claimants.

In Richardson, the Court mandated that evidence not normally admissible in regular court proceedings could constitute substantial evidence in disability hearings. One of the justifications for this holding was that the disability hearings should be understandable for the layman claimant, but the Court could have hardly meant that relaxation of evidentiary rules in disability hearings was meant to relax any obligation of fairness owed to the disability claimant.

The Court's holding that the medical report was admissible was not based on the notion of the rules being relaxed, but instead on the fact that four other medical experts had arrived at the same conclusion. Richardson arguably would have been decided differently if the medical expert's report instead would have been an occupational report completed by a VE who was not qualified (to manipulate job data and identify components of job groups provided by the various vocational sources), and whose field was a relatively new science.

The Court in Richardson arguably would have been more concerned about an infringement of procedural due process afforded to disability claimants. But what has been perceived as a victory for disability claimants actually hinders the level of protection granted to the claimants from unqualified VEs or conclusions arrived at by mere extrapolations which are ipse dixit.

Subsequently, courts have interpreted the relaxed evidentiary standards in SSA proceedings to mean that heightened standards for vocational experts are not necessary. For example, in Bayliss v. Barnhart, the Court declared that the VE's expertise establishes the necessary foundation for his testimony, and so, no additional foundation is necessary.

In Bayliss, the claimant argued that the requirements for admissibility of expert testimony under Rule 702, established in Daubert should apply to the testimony of the VE. However, the Bayliss Court determined that because the Daubert decision rested on the interpretation of Rule 702, the safeguard implications established in Daubert, and subsequently extended to all expert testimony via Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), did not govern the admissibility of evidence before the ALJ in SSA proceedings.

In Donahue v. Barnhart, the Court held that although Rule 702 does not apply to SSA proceedings, the notion that VEs should use reliable methods does not depend on Rule 702 because the Social Security proceedings require every decision to be supported by substantial evidence.

Additionally, the Court pointed out that "[e]vidence is not ‘substantial' if vital testimony has been conjured out of whole cloth." These cases suggest two propositions: first, in part because of Richardson, Rule 702 and subsequently the safeguard implications of Daubert do not apply; and second, the foundation requirements of the VE's expertise are not uniformly established. The interpretations of Richardson somehow seem flawed because a system that was meant to be informal to benefit the layman claimant should not be allowed to relax the level of fairness the system owes to the claimant.

Moreover, the rejection of a Daubert-like standard to VEs does not seem justified. Applying a Daubert-like standard would not adversely affect the substantial evidence requirement. Rather, it would ensure the integrity of the administration of the system by permitting only qualified experts, whose testimony is based on sufficient and updated data that is formulated through the use of reliable and accepted principles.

Additional resources provided by the author

Navigating your way through life is not always easy. Sometimes you're thrown a curve - often at themost inopportune time. When that happens contact Indiana Disability Attorney Nathaniel Hubley. More information about the Social Security Disability process can be found at or visiting the Social Security Administrations' website.

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