Sunday, October 4, 2009
The Efficiency Expert: WDNY Opinion Reveals Circuit Split Over Vocational Expert Testimony In Disability Adjudications
It is well established that the Federal Rules of Evidence do not apply to disability adjudications. That said, as with other proceedings in which the Rules do not apply, they remain relevant. Therefore, in its recent opinion in Piekarski v. Astrue, 2009 WL 299277 (W.D.N.Y 2009), which involved a disability adjudication, the United States District Court for the Western District of New York had to determine whether a vocational expert used reliable methods. In resolving that issue, the court noted but found that it did not have to resolve a circuit split on the reliability issue.
In Astrue, William G. Piekarski challenged an Administrative Law Judge's (“ALJ”) determination that he was not disabled within the meaning of the Social Security Act. Piekarski alleged that he had been disabled since April 30, 2001, due to polysubstance dependence, major depression, anxiety, and back problems, which rendered him unable to work.
The ALJ, however, denied Piekarski disability benefits, relying in part on the testimony of vocational expert Timothy Janikowski, Ph.D., C.R.C., who testified that a significant number of jobs exist in this economy which Piekarski could perform. On Piekarski's ensuing appeal, the United States District Court for the Western District of New York noted that the Federal Rules of Evidence do not apply to disability adjudications, making inapplicable Federal Rule of Evidence 702, which provides that
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
That said, the court noted that vocational experts must still use reliable methods. But do they have to prove that their methods are reliable? According to the Western District of New York, there is a split on the issue. Some courts, such as the Seventh Circuit, hold that if a vocational expert's testimony is questioned at a hearing, the ALJ should make an inquiry, similar to the Rule 702 inquiry, to find out whether the purported expert's conclusions are reliable. Conversely, other courts, such as the Ninth Circuit, hold that "a vocational expert's recognized testimony provides the necessary foundation, and no additional foundation is required."
The problem for Piekarski was that he never objected to Dr. Janikowski's testimony at trial, meaning that the Western District of New York did not have to resolve the circuit split. Nonetheless, the court did ask the doctor to explain the bases for his conclusion, and he responded "that his conclusions were based upon various government publications, statistics reports, labor market surveys, and his own adjustments through his professional experiences."
While the court didn't have to resolve the split, I think that the Seventh Circuit has it right. Just because somebody has expert qualifications doesn't mean that we should presume that his actions and conclusions are reliable. After all, we have malpractice actions against doctors and lawyers for a reason. It thus seems to me to be the better practice to require vocational experts to explain their methods upon request rather than presuming them to be reliable based upon the expert's qualifications.