Brett Stuff
Judging the Judges
Term Year: 2018

Michael J. Biestek, Petitioner v. Nancy A. Berryhill Acting Commissioner of Social Security

Summary Analysis

DATE: 2019-04-01
DOCKET: 17-1184
NAME: Michael J. Biestek, Petitioner v. Nancy A. Berryhill Acting Commissioner of Social Security

   AUTHOR: Kagan
   JOINING: Roberts, Thomas, Breyer, Alito, Kavanaugh
   GOOD: Yes

OPINION: Dissenting
   AUTHOR: Sotomayor
   JOINING: None
   GOOD: No

OPINION: Dissenting
   AUTHOR: Gorsuch
   JOINING: Ginsburg
   GOOD: No

Case Commentary

What kind of disclaimer do you want?

I'm not a lawyer.

I'm not a careful reader.

And I'm not even overly good at expressing my thoughts.

These are my personal reactions to a Supreme Court Decision. Whether The Court or any of the Justices would agree with my analysis (or anything else I have to say on this or any other page in the Judging the Judges series) is highly doubtful.

Micheal Biestek requested Social Security Benefits. The Social Security Administration held hearings to determine eligibility. An Expert Witness was called-in. But said Expert Witness did not back-up their analysis and refused to provide the raw data on which their conclusions were based. Nor does it appear the Social Security Administration scrutinized the Expert's Analysis in any way. Accepting the Expert's Conclusions wholesale, the Social Security Administration declined to provide some of the benefits Biestek requested.

I wonder how accurate my summary is?

First, although I agree with The Court, I feel that it weenied out (it's a technical term), by refusing to look at the specific merits of Biestek's claim. The Court denied making a General Rule. But perhaps, a Specific Rule would have been appropriate.

Of course, I don't need (or want) a Specific Rule, either.

But then, I am going to make some assumptions. I am going to assume that both the Expert Witness and the Administrative Law Judge (a Social Security Agency employee as I understand it) knew the data involved.

The Expert Witness testified that "240,000 bench assembler and 120,000 sorter jobs existed in the national economy."

She (and in this case, it is a she, Ginsberg), used "Bureau of Labor Statistics and her own individual labor market surveys" (internal quotes omitted, because who cares... but then, that's what The Court is always doing... and then, saying... so, I shall do the same).

I, myself, was curious about these numbers. And after about three seconds of online research found there to be (roughly and perhaps for different years) 1,900,000 Assemblers and 140,000 Sorters.

The difference between the Expert Witness's numbers and mine, being the difference between General (me) and Sitting Jobs (her).

I give you this data, because I believe the Administrative Law Judge would have been painfully (to the point of tears) aware of these numbers, as dealing with this sort of thing was their full-time job. And taking less than a 20% slice, as the discount in going from General to Sitting (as we are talking about jobs Mr Biestek could perform), does not seem outlandish or unreasonable... to me.

Though, whether a 20% discount is accurate, I haven't the slightest clue.

In short (to my eye, ear, nose, and mouth), the numbers look good. My independent research took about three minutes. And the ALJ (Administrative Law Judge, don't you know) could probably just hear the numbers and accept them, as they'd (likely) heard the same sort of statistics countless times before... maybe in the case immediately preceding this one.

Whether the numbers are reasonable is the meat and potatoes of this case.

In a formal trial, the Expert Witness would have had to back up their conclusions. The Dissent does a wonderful job of Citing Precedent. It was joy to read.

In short (and if requested), an Expert Witnesses must walk everyone through their analysis or their conclusions are meaningless.

However, a Social Security Benefit Review (or whatever the forum is called) is not a Formal Court Proceeding. It is an Informal Court Proceeding. And as such, the standards are not as stringent. One must only present Substantial Evidence.

But what does Substantial Evidence mean?

The Court says it means "more than a mere scintilla" (which is slightly less that a sextilla, if I understand my metric units correctly) or (continuing on with the definition of Substantial Evidence, it's) "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Well, my research and analysis proceeded at blazing speeds. And if I knew (as in, if I had a ongoing real-life working relationship with) the Expert Witness (as I presume the Administrative Law Judge must have), I could probably (as in, most certainly) gotten all the information I needed from the Expert Witness in a very brief exchange.

The Dissent would define Substantial Evidence differently, as "Evidence sufficient to permit a reasonably jury to reach the verdict it did." Or more succinctly, "Speculation isn't Substantial Evidence." (Let us just assume I am massaging my quotes ever so slightly, the addition of italics in this instance, capitalizing the first letter in the previous).

And if one uses the Dissent's definition, the Expert Witness Testimony does seem to fall apart, as what's the (Real World) basis for the Twenty Percent Slice? And is that even the methodology the Expert Witness used?

Further, I will point out that the only reason Expert Witnesses are being used (at all, from beginning to end) is because in a previous case (Kerner v. Flemming, 1960), it was determined an Administrative Law Judge could not rely on their own opinions (i.e. "nothing save [his own] speculation") to decide a case.

And it is a small (and quite meaningless) jump (so, call it a step) to insert the testimony of an Expert Witness into the previous and conclude that an Administrative Law Judge cannot rely on the Opinion of an Expert Witness (that is to say, nothing but that Expert Witness's own speculation) to decide a case.

In reaching my own, personal conclusion, as to the merits of this case, I fall back on the notion that the Administrative Law Judge is holding an Informal Hearing that they have overseen (presumably) time and time again. And as such, there is little need to reinvent the wheel at each iteration.

I have no need to question the employment numbers. I can accept them as reasonable estimates.

More importantly, if I were representing Mr Biestek (a highly unlikely occurrence, since I am neither a lawyer nor expecting to ever become one), I would wonder about the actual and specific jobs Mr Biestek could secure.

After all, there are hundreds (if not thousands) of professional Singing, Acting, and Modelling gigs out there, paying tens of thousands of dollars per hour.

Yes. There are many of these jobs.

But what are the chances of my securing any one of them given my particular skill set... and/or obvious {social, behavioural, and/or mental} (so take your pick) deficiencies?

Could Mr Biestek have gotten a job?

Did he even try?

I do not know.

Judging the Judges

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More importantly, for said High Paying Acting Gig would I have to move to LA?

Because I really don't want to. I hear the traffic is something awful. And you know what? I'm more of a walker, anyway.

© copyright 2019 Brett Paufler
A Personal Opinion/Editorial