Social Security Disability: Evidence: Pre- and Post-Daubert Standards and Post-Daubert SSA Policies
Because the VE testifies at the disability hearing and that testimony is used by the ALJ to determine whether a claimant is disabled, a standard is needed to define the specific requirements that the VE's testimony and the VE's methodology must satisfy in order to maintain the integrity of the VE's testimony. The most well-known example of a standard that places a check on the testimony of an expert is Rule 702, but before the adoption of Rule 702, American courts relied on the Frye standard.
- 1. Pre-Daubert: Frye v. United States
Before implementation of Rule 702, the Frye general acceptance standard was the established standard for determining the admissibility of expert testimony. This standard required testimony from experts in relatively novel scientific fields to be closely scrutinized and ultimately ruled inadmissible if the expert's conclusions had not yet gained scientific recognition among other experts in the novel scientific field.
- 2. Daubert v. Merrill Dow Pharmaceuticals, Inc.
In 1983, Daubert incorporated into evidentiary jurisprudence the notion that judges act as gatekeepers; this required a judge to determine whether a proffered expert opinion is both relevant and reliable to the issue being sought for admission. Daubert established that federal judges cannot merely defer to a proposed expert on the ground that the expert has good credentials in a field that is atypical or complex. Any prospective expert evidence that is not both reliable and relevant must be excluded by the gatekeeper because it is speculation rather than knowledge. Eventually, the Supreme Court expanded Daubert by declaring that gatekeepers must ensure that any and all scientific testimony is not only relevant, but reliable, and gatekeepers must apply this rule equally to all expert testimony. Under Kumho Tire Co., Ltd. v. Carmichael, courts are expected to filter the good science from the bad science and thus ensure that the proposed expert testimony is supported by appropriate validation.
- 3. Why the Daubert Standard Does Not Apply in Social Security Disability Hearings
In Richardson v. Perales, the Supreme Court considered whether the requirements of expert testimony as outlined in Rule 702 applied to experts testifying at Social Security disability hearings. In Richardson, the Court determined that Rule 702 and its requirements do not govern the admissibility of evidence in disability hearings. Furthermore, under 42 U.S.C. § 405(b)(1) and 20 C.F.R. § 404.950(c), it is clear that Rule 702, and thus Daubert's interpretation of Rule 702 criteria, does not apply to the admission of evidence in Social Security disability hearings. As mentioned above, the reason for this approach is described by the Richardson Court: the "strict rules of evidence, applicable in the courtroom, are not to operate at social security hearings so as to bar the admission of evidence otherwise pertinent[.]" The Richardson Court held that evidence that would be inadmissible in a court proceeding could nonetheless constitute substantial evidence supporting a Social Security disability determination. The Court reasoned that with regard to Social Security disability proceedings, "[t]here emerges an emphasis upon the informal rather than the formal." The Richardson Court emphasized that the Social Security disability proceeding should be comprehensible to a layman claimant and that the proceeding "should be liberal and not strict in tone and operation." This informal evidentiary approach continued as Daubert's interpretation of Rule 702 and Daubert criteria was used in traditional courtrooms and federal agency hearings. Additionally, in Social Security disability proceedings, unlike in traditional proceedings, the VE's recognized expertise provides the necessary foundation for his or her testimony; no other requirements exist to establish additional foundation for the testimony. Because Daubert and Rule 702 do not apply to Social Security disability hearings, the SSA correspondingly enacted only a minimal standard for VE testimony, so as to afford the claimant a fair and just hearing.