Biestek v. Commissioner of Social Security , 880 F.3d 778 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0704n.06
Case No. 17-1459
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 27, 2017
MICHAEL J. BIESTEK, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
COMMISSIONER OF SOCIAL SECURITY, ) MICHIGAN
)
Defendant-Appellee. )
)
BEFORE: CLAY, COOK, and WHITE, Circuit Judges.
COOK, Circuit Judge. Plaintiff-Appellant Michael J. Biestek (“Biestek”) alleges that he
became disabled on October 28, 2009, for purposes of receiving Disability Insurance Benefits
and Supplemental Security Income under the Social Security Act. An Administrative Law Judge
(“ALJ”) issued a partially favorable decision finding Biestek disabled beginning May 4, 2013,
some three-and-a-half years short of the time he claimed.
Biestek sought judicial review of the ALJ’s finding of non-disability for the period
between October 28, 2009, and May 4, 2013. The district court rejected his claims. We
AFFIRM.
Case No. 17-1459
Michael J. Biestek v. Comm’r of Soc. Sec.
I. BACKGROUND
Biestek, fifty-four, worked for most of his life as a carpenter and a laborer in various
construction-related roles. His work frequently entailed transporting scaffolding, panels, and
other construction materials around work sites. He completed at least twelve years of education,
plus one year of college, and received additional vocational training as a bricklayer and
carpenter. He stopped working in June 2005, allegedly due to degenerative disc disease,
Hepatitis C, and depression.
Biestek applied for Supplemental Security Income and Disability Insurance Benefits in
March 2010, alleging a disability onset date of October 28, 2009. The Social Security
Administration (“SSA”) initially denied this application in August 2010. Biestek requested a
hearing before an ALJ, the ALJ denied Biestek’s application, and the Social Security
Administration Appeals Council denied review. Biestek timely appealed to the district court.
That court adopted a magistrate judge’s report and recommendation and remanded the case to the
SSA because the ALJ had not obtained necessary medical-expert testimony and did not pose a
sufficiently specific hypothetical to the vocational expert.
Following a second hearing and additional opinion gathering, the ALJ issued a partially
favorable decision finding Biestek disabled starting on his fiftieth birthday (May 4, 2013)—the
point at which the Agency deems an applicant “closely approaching advanced age” and thus
presumptively disabled pursuant to 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.14; see also
20 C.F.R. § 404.1563(d) (defining persons “closely approaching advanced age” as between ages
fifty and fifty-four). The ALJ found that Biestek was “not disabled” before May 4, 2013,
however.
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Biestek again appealed to the district court. This time, though, the magistrate judge’s
report and recommendation found that the ALJ’s decision should be affirmed in full. Rejecting
Biestek’s objections, the district court then adopted the report and recommendation. This timely
appeal followed.
II. ANALYSIS
Biestek briefs five issues, but because he forfeited one by failing to timely raise it before
the district court, just four are properly before us.1 We will affirm the SSA’s conclusions unless
the ALJ applied incorrect legal standards or her findings were not supported by substantial
evidence in the record. Wright-Hines v. Comm’r of Soc. Sec., 597 F.3d 392, 395 (6th Cir. 2010).
Substantial evidence supports a decision if “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion” backs it up. Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Thus, a
decision supported by substantial evidence must stand, even if we might decide the question
differently based on the same evidence. Wright-Hines, 597 F.3d at 395. It is not our role to “try
the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (quoting Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984)).
1
Biestek also argues that the ALJ erred by not accounting for alleged moderate
limitations in his concentration, persistence, or pace. But because Biestek failed to address this
issue in his objections to the magistrate judge’s report and recommendation, we consider it
forfeited on appeal. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).
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Michael J. Biestek v. Comm’r of Soc. Sec.
A. Substantial Evidence Supports the ALJ’s Finding that Biestek’s Medical Condition
Did Not “Medically Equal” the Listing
Biestek contends the ALJ incorrectly found that he did not meet or medically equal the
back-pain-related impairment listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A1, § 1.04(A).2
The impairment must last for at least twelve months to meet the terms of the listing. Id. at
§ 1.00(B)(2)(a). The ALJ determined Biestek did not meet or medically equal the listed
impairment because Biestek “lack[ed] the requisite motor and sensory deficits, and there [was]
no evidence of spinal arachnoiditis or spinal stenosis resulting in pseudoclaudication.” The ALJ
relied significantly on agency-appointed expert Dr. Frank L. Barnes’s opinion that Biestek’s
physical condition neither met nor equaled a medical listing while assigning minimal weight to
the opinions of Biestek’s retained expert, Dr. Alexander J. Ghanayem.
Biestek claims that he “medically equaled” the listing because he displayed all the
required criteria at one point or another during the relevant period, even if not concurrently or
consistently over twelve months. He also argues that Dr. Ghanayem offered analysis and
explanations superior to the allegedly flawed testimony of Dr. Barnes, so that reliance on
Barnes’s testimony cannot constitute “substantial evidence” in support of the ALJ’s opinion.
1. The ALJ Reasonably Found Biestek Did Not “Medically Equal” the Listing
Biestek argues that “medically equaling” the listing does not require all symptoms to be
present consistently for a twelve-month period, and that to impose such a requirement would
erase the distinction between “meeting” and “medically equaling” a listing. He maintains that
2
This listing, for “disorders of the spine,” requires (in relevant part) “[e]vidence of nerve
root compression characterized by neuro-anatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).” 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A1,
§ 1.04(A).
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displaying different deficits at different times over the course of twelve months is enough to
satisfy the duration requirement.
As the Commissioner points out, however, medical equivalency is not a refuge for
claimants who show only intermittent signs of impairment. The Commissioner’s own regulation
makes clear that equivalency exists where a claimant’s impairment “is at least equal in severity
and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a) (emphasis
added); see also Kidd v. Colvin, No. CV 115-207, 2017 WL 914061, at *4 (S.D. Ga. Feb. 2,
2017) (magistrate’s report and recommendation) (finding a failure to meet the duration
requirement where the claimant’s back pain was only demonstrated by “a handful of abnormal
findings scattered throughout the record”), adopted in full sub nom. Kidd v. Berryhill, No. CV
115-207, 2017 WL 901896, at *1 (S.D. Ga. Mar. 7, 2017). Medical equivalency does not relieve
claimants of the need to demonstrate the long-term nature of an impairment. The
Commissioner’s regulation allows for variation in the number, type, or severity of the claimant’s
conditions, so long as the claimant’s overall impairment is “at least of equal medical
significance” to a listed impairment. 20 C.F.R. § 404.1526(b)(ii). The regulations make no
provision, however, for claimants whose condition is reasonably found to be sporadic or
intermittent.
2. The ALJ Reasonably Relied on Dr. Barnes’s Testimony
Dr. Barnes noted the absence of positive straight leg-raising3 on most examinations, and
that numbness, reflex change, and atrophy were not consistently present over a twelve-month
period. In Barnes’s opinion, Biestek did not meet or equal any listing. Furthermore, the ALJ
3
A straight-leg raising test (also called a Lasegue test) evaluates a patient’s lower back
pain. The patient lies on his back and his care provider raises his leg upward, keeping the knee
straight. If the patient experiences pain, the test is positive (an abnormal result). See 2 Dan J.
Tennenhouse, Attorneys Medical Deskbook § 18:4 (4th ed. 2017).
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noted that MRI images in the record show “only mild-to-moderate degenerative changes with no
more than mild stenosis.”
Biestek’s expert, Dr. Ghanayem, assessed the evidence differently, concluding that
Biestek more than met or medically equaled the terms of the listing. The ALJ gave “little
weight” to Dr. Ghanayem’s opinion, however, due to inconsistencies between Dr. Ghanayem’s
assessments and other objective medical evidence in the record. Dr. Ghanayem’s opinion of
Biestek’s condition is in tension with the findings of multiple radiologists interpreting multiple
MRIs over several years.
Additionally, we note other evidence showing Biestek had, at best, inconsistent back
issues during the period he was under the care of treating physician Dr. Howard Wright. Some
appointment notes do not reference back pain, only reporting Biestek as having “normal gait and
station,” while others only a short time later mention some pain.
Dr. Ghanayem also attempted to explain the inconsistent straight-leg raising test results.
According to Dr. Ghanayem, if the underlying nerve condition becomes chronic and persists for
a significant period, the affected nerves can become so damaged and desensitized that a person
can pass the test. Dr. Barnes presented an alternative explanation: in some cases, a patient’s
spinal injuries heal by themselves, resulting in increased mobility sufficient to pass the straight-
leg raising test.
Biestek argues that the ALJ inappropriately credited Dr. Barnes’s testimony over Dr.
Ghanayem’s opinions. But just because Dr. Ghanayem offered explanations that could reconcile
elements of the objective medical record with Biestek’s claims does not mean that the ALJ was
required to accept those explanations. The ALJ faced dueling opinions from two highly
qualified medical experts and found Dr. Barnes’s testimony more credible after assessing how
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well his testimony fit with the objective medical record—a determination she was fully
empowered to make. See Crum v. Sullivan, 921 F.2d 642, 644 (2d Cir. 1990) (“The
[Commissioner], and not the court, is charged with the duty to weigh the evidence, to resolve
material conflicts in the testimony, and to determine the case accordingly.”). The ALJ based her
decision on substantial evidence.
B. The ALJ Acceptably Evaluated Medical Opinion Evidence
Next, Biestek contends that the ALJ failed to properly weigh opinion evidence from two
medical experts, Drs. Wright and Barnes.
1. Dr. Wright’s Opinions
Dr. Wright saw Biestek frequently between October 2012 and April 2013, and filled out a
residual functional capacity (“RFC”) questionnaire detailing Biestek’s condition in July 2015.
Biestek argues that the ALJ erred in not according controlling weight to any of Dr. Wright’s
assessments.
An ALJ is required to give controlling weight to a treating physician’s opinion, so long as
that opinion is supported by clinical and laboratory diagnostic evidence not inconsistent with
other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); see also Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). But if the ALJ concludes that a treating source’s
medical opinion is not entitled to controlling weight, she must weigh the opinion in light of
several factors. See 20 C.F.R. § 404.1527(c) (listing factors). The ALJ need not perform an
exhaustive, step-by-step analysis of each factor; she need only provide “good reasons” for both
her decision not to afford the physician’s opinion controlling weight and for her ultimate
weighing of the opinion. Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804–05 (6th Cir.
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2011); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406–07 (6th Cir. 2009); 20 C.F.R.
§ 404.1527(c)(2).
Dr. Wright provided three opinions on Biestek’s condition. Two are reports to the
Michigan Department of Human Services from April and October 2013. The third is a residual
functional capacity questionnaire created for Biestek’s present disability application, from July
2015.
The ALJ declined to give any of Dr. Wright’s opinions controlling weight and instead
assigned them minimal weight. The ALJ discounted the July 2015 opinion entirely, noting that
by then Dr. Wright had not seen Biestek for over two years. Additionally, the ALJ stated that
Dr. Wright’s earlier opinions were not supported by the objective medical record evidence. She
pointed to the “numerous MRI studies [which] showed no more than mild-to-moderate
degenerative findings” as the “most notabl[e]” example, but did not specifically refer to any
additional evidence in the record to support her reasoning.
Biestek claims the ALJ gave Dr. Wright’s opinions short shrift. At a minimum, he
asserts the ALJ should have afforded Dr. Wright’s 2013 opinions the substantial weight
generally accorded a treating physician’s opinions. The magistrate judge’s report and
recommendation agrees that Dr. Wright was one of Biestek’s treating physicians during this
period. Biestek states that MRI evidence was “the only reason offered by the ALJ to reject Dr.
Wright’s assessment,” and that the ALJ ignored substantial evidence in the record demonstrating
Biestek’s efforts to alleviate significant pain. Additionally, Biestek argues that the ALJ’s
reliance on the MRI findings is misplaced in light of Dr. Ghanayem’s alternative explanation of
the MRI imaging as consistent with Biestek’s alleged impairments.
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The ALJ had adequate reason to assign minimal weight to Dr. Wright’s July 2015
questionnaire. By that time, Dr. Wright had not provided Biestek with medical care for over two
years, clearly indicating that Dr. Wright and Biestek were no longer in a treatment relationship.
See 20 C.F.R. § 404.1527(c)(2)(i)–(ii).
As for Dr. Wright’s earlier opinions, while they may be somewhat in accord with other
evidence, they are nonetheless inconsistent with prior MRI results showing only mild-to-
moderate degeneration. Biestek alleges that the ALJ’s failure to elaborate on her specific
rationale for discounting Dr. Wright’s 2013 opinions beyond referencing the MRI evidence
amounts to a failure to provide “good reasons,” warranting reversal. But the MRIs were only the
“most notabl[e]” evidence the ALJ relied on; other evidence in the record also supports the
ALJ’s decision. We may consider this evidence, even if the ALJ failed to mention it. Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001) (“Judicial review of the Secretary’s
findings must be based on the record as a whole. Both the court of appeals and the district court
may look to any evidence in the record, regardless of whether it has been cited [in prior SSA
proceedings].”).4
Here, the ALJ provided a rationale and referred to particular evidence in the record. The
point of the “good reasons” rule is to permit meaningful review of the ALJ’s decision and to
ensure that a claimant is not “bewildered” when an administrative bureaucracy tells him that he
is not disabled. Wilson, 378 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.
4
Other Sixth Circuit cases finding that an ALJ failed to provide “good reasons” where
the ALJ did not cite material in the record that could have supported the ALJ’s decision are
distinguishable. In Wilson, the ALJ offered only a summary rejection of the opinion of the
claimant’s treating physician, with no analysis or support whatsoever. 378 F.3d at 545–46. And
in Rogers v. Commissioner of Social Security, the ALJ dismissed the reports of multiple treating
physicians based on evidence that could not reasonably outweigh the evidence proffered by the
treating physicians. 486 F.3d 234, 243–44 (6th Cir. 2007).
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1999)). There are no such problems in this case. In addition to the MRIs, other record evidence
supports the ALJ’s conclusion, even if she referenced such evidence in a more general way.
As the Commissioner points out, the examination notes from Biestek’s various visits to
Dr. Wright during the six-month period when Dr. Wright was Biestek’s treating physician
provide some of the most notable evidence apart from the MRIs. There is little consistency
regarding the back pain alleged. The first report describes Biestek as possessing “normal gait
and station,” and makes no mention of any back pain issues. The next two exams identified back
pain as an issue, but no back pain is reported in the following three exams. Back pain then re-
emerges on the final set of examination notes. These exam notes are difficult to reconcile with
the stark portrait of Biestek’s condition that Dr. Wright painted in the two 2013 medical
examination reports.
Substantial evidence supported the ALJ’s decision, and the ALJ provided a sufficient
rationale. “No purpose would be served by remanding for the ALJ to explicitly address the
shortcomings of [Dr. Wright’s] opinion and the evidence and methods underlying it.” Kornecky
v. Comm’r of Soc. Sec., 167 F. App’x 496, 507 (6th Cir. 2006).
2. Dr. Barnes’s Opinion
a. Restriction on Bending at the Waist and Lifting Weight
Dr. Barnes testified that Biestek could occasionally squat and pick up objects weighing
up to ten pounds, but that he would not be able to bend at the waist to do so. The ALJ gave this
portion of Dr. Barnes’s testimony “great weight,” but did not incorporate a specific restriction on
bending at the waist to lift up to ten pounds into her RFC analysis or into a hypothetical posed to
the vocational expert. Biestek contends that, as a result, the hypothetical “did not fairly portray
Biestek’s limitations as supported by the objective evidence and the ultimate findings by the
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ALJ,” an error that “cannot be deemed harmless” because the ALJ specifically granted this
portion of Barnes’s testimony great weight.
The ALJ actually did incorporate a restriction on “occasional stooping,” however. The
Agency defines “stooping” as “bending the body downward and forward by bending the spine at
the waist.” SSR 83-14, 1983 WL 31254, at *2 (Jan. 1, 1983). Biestek replies that the ALJ’s
reference to “occasional stooping” conflicts with Dr. Barnes’s total prohibition on bending at the
waist. But Biestek is mistaken: Dr. Barnes did not impose a restriction on all bending at the
waist. He only opined that Biestek could not bend at the waist and lift weight. The ALJ not only
incorporated a limit on weight lifting into her hypothetical, she was even more restrictive than
Dr. Barnes. The ALJ asked the vocational expert if jobs would be available for someone who
“could not lift more than five pounds at a time.” Overall, the ALJ adequately addressed the
ultimate issue—Biestek’s ability to lift up to ten pounds of weight.
Biestek also claims that because the SSA has itself held that some stooping is required to
do most work, the ALJ should have sought further clarification on the impact of stooping. The
vocational expert proposed two jobs—bench (final) assembler and nut sorter—from the
Dictionary of Occupational Titles (“DOT”) that the ALJ incorporated into her RFC analysis.
But neither of these jobs requires any stooping at all. DOT § 713.687-018, 1991 WL 679271
(“Stooping: Not Present – Activity or condition does not exist.”); see also DOT § 521.687-086,
1991 WL 674226 (same).
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b. Exertion of Force
Biestek also complains that according to the DOT, the bench assembler and nut sorter
jobs may have required Biestek to “exert[] up to 10 pounds of force occasionally5 . . . and/or a
negligible amount of force frequently6 to lift, carry, push, pull, or otherwise move objects,” in
violation of Dr. Barnes’s prohibition on lifting ten pounds from the waist. DOT § 713.687-018,
1991 WL 679271 (final assembler); DOT § 521.687-086, 1991 WL 674226 (nut sorter). Yet
nothing in the DOT indicates that such exertion requires lifting objects from ground level. As
the Commissioner points out, Biestek could have exerted the necessary force in other ways, such
as while seated or while working with objects at table height.
C. The ALJ Acceptably Assessed Biestek’s Credibility
The ALJ described the various treatments Biestek has received over the years as
“relatively effective in controlling his symptoms.” The efficacy of these treatments diminished
Biestek’s credibility. The ALJ also noted that, throughout the record, Biestek reported engaging
in a variety of daily activities suggestive of physical capacity to perform at least some sedentary
work. Further, the ALJ discussed Biestek’s history of non-compliance with his treatment
regimen, citing numerous examples of Biestek cancelling or no-showing his medical
appointments and his failure to take many of his medications as prescribed. These findings
factored into the ALJ’s RFC assessment.
Biestek takes issue with each of these alleged faults in his credibility, and additionally
charges that the opinions of Drs. Barnes and Ghanayem should have enhanced his credibility.
5
The DOT defines “occasionally” as an “activity or condition exist[ing] up to 1/3 of the
time.” DOT § 713.687-018, 1991 WL 679271; see also DOT § 521.687-086, 1991 WL 674226
(same).
6
“Frequently” is defined as an “activity or condition exist[ing] from 1/3 to 2/3 of the
time.” DOT § 713.687-018, 1991 WL 679271; see also DOT § 521.687-086, 1991 WL 674226
(same).
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His task is especially difficult: while an ALJ’s credibility determinations must be supported by
substantial evidence, we accord them special deference. Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 531 (6th Cir. 1997). Given this standard, we cannot say the ALJ erred.
1. Symptom Control
The ALJ cited Biestek’s favorable reaction to Demerol, as well as nerve blocks, physical
therapy, and back injections as examples of treatments that provided Biestek relief. Biestek
alleges that the ALJ wrongly characterized these treatments as permanently “controlling” his
pain rather than granting temporary respite. There is certainly record evidence showing that
these measures did not completely negate Biestek’s pain, and that in some cases treatment
benefits did not persist for an extended period. But the ALJ never characterized Biestek’s pain
as permanently and comprehensively mitigated, instead describing the various treatments Biestek
received as “relative[ly] effective[].” Moreover, she acknowledged the pain Biestek continued to
endure by restricting his RFC to a narrow range of sedentary work with a variety of
accommodations.
2. Daily Activities Considered
The ALJ noted that, at various times, Biestek said he engaged in a range of activities
indicative of his RFC. For example, Biestek reported reading the newspaper, preparing simple
meals, visiting his son at least twice a week, driving, doing laundry, shopping, cashing checks,
providing childcare, watching television, running errands, playing video games, and making
appointments.
Biestek objects to the ALJ’s characterization of these activities, noting that he could do
several of them from any position, including reading the newspaper, making appointments, and
watching TV. He disputes the ALJ’s assertion that he participated in childcare as Biestek’s son
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was seventeen years old at the time of the 2015 hearing, making it unclear what “childcare” he
could be engaged in. He also attempts to add color to several of the other tasks. He describes
driving a car as a rare event, perhaps only occurring once a month. He says he confines his meal
preparation to the microwave, does the laundry just once every two to three weeks, and only goes
to the grocery store approximately once a month (and that even at the store, he has had to lie
down in the aisle to relieve bouts of pain).
While Biestek’s ability to perform many of these activities is definitely limited, the ALJ
also cited other activities much more obviously at odds with his claims of debilitating pain. For
example, once Biestek started taking Vicodin, his quality of life improved such that he was able
to exercise and play football with his son. Overall, the ALJ based her conclusions on a
reasonable interpretation of the record.
3. Non-Compliance with Treatment Regimen
The ALJ also noted that Biestek has been non-compliant with his prescribed treatments,
undercutting his testimony concerning the severity of his condition. In particular, the ALJ
pointed to Biestek’s repeated no-shows and cancellations for his medical appointments.
Additionally, the ALJ referred to Biestek’s admitted habit of selectively taking his prescribed
medication. He took his pain medication “once in a while as needed.” Other medications reveal
even more problematic usage patterns. His care provider noted that Biestek stopped taking
Wellbutrin (an antidepressant) both because it made him feel “weird,” and because “he does not
believe much in medication so that is why he does not take it.” The care provider also noted that
Biestek “reports he does not tell Gianina Cristiu, NP about not taking medication because he
does not want to hurt his chances of obtaining SSI.” While adverse side effects are a reasonable
excuse for an applicant to interrupt a prescribed treatment regimen, see SSR 16-3P, 2016 WL
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1119029, at *9 (Mar. 16, 2016), the other rationales Biestek supplied for not taking certain
medications display a pattern of behavior the ALJ reasonably interpreted as undermining
Biestek’s credibility.
4. Testimony of Drs. Barnes and Ghanayem
Biestek further contends that because Drs. Barnes and Ghanayem concurred that
Biestek’s subjective statements were “entirely consistent with his pathology,” the ALJ erred in
failing to address this favorable credibility evidence. But the ALJ had significant reasons for
discounting Dr. Ghanayem’s testimony, and Dr. Barnes testified that Biestek could tolerate a
range of sedentary work. The ALJ’s failure to respond to these opinions does not deprive her
decision of the support of substantial evidence.
5. The ALJ’s Use of Evidence from After Biestek’s Disability Date
Some of the evidence discussed by the ALJ postdates May 4, 2013, when the ALJ found
Biestek disabled upon his fiftieth birthday. For example, the ALJ referenced a July 23, 2013,
report by Edward Czarnecki, Ph.D., indicating that Biestek “could perform simple, rote,
repetitive unskilled work.” Citing no authority, Biestek claims that it was unfair to point to
evidence after Biestek’s disability date to impugn his credibility before that time. This is a
flawed argument. Nothing about Biestek’s substantive medical condition changed on May 4,
2013; he simply turned fifty years old, thereby creating an administrative presumption that he
was disabled. 20 C.F.R. Part 404, Subpt. P, App. 2, § 201.00(g). Evidence from after his formal
disability date is as relevant to discerning Biestek’s credibility as evidence predating it.
D. The ALJ Did Not Err in Refusing to Require the Vocational Expert to Provide
Specific Data in Support of Her Opinions
Finally, Biestek argues that the ALJ erred by refusing to require the vocational expert to
produce data or other documentation to support her opinions regarding the work available to
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Biestek. Instead, the vocational expert based her testimony on the Dictionary of Occupational
Titles and her “professional experience,” gained from talking with employers and conducting job
analyses. When Biestek’s counsel requested the vocational expert produce underlying data or
analyses in support of her statements, she refused, citing the confidentiality of her files, and the
ALJ declined to require her to produce such information, even in a redacted format.
Biestek alleges reversible error because little substantiates the reliability of the vocational
expert’s testimony other than her word. Biestek argues such testimony falls short of “substantial
evidence.”
This court has not yet squarely addressed the extent to which vocational experts must
produce underlying data in support of their opinions. There is a divide, however, between the
Seventh Circuit and several other circuits that have staked a position. The Seventh Circuit
adopted a rigorous approach in a pair of cases, Donahue v. Barnhart, 279 F.3d 441 (7th Cir.
2002), and McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004), incorporating the essence, if not
the explicit requirements, of Federal Rule of Evidence 702 into the administrative adjudicative
process as applied to vocational expert testimony. See McKinnie, 368 F.3d at 910–11.
Expressing fear that vocational expert testimony could be “conjured out of whole cloth,”
Donahue, 279 F.3d at 446, the Seventh Circuit obliges vocational experts to provide the data and
reasoning used in support of their conclusions upon request, McKinnie, 368 F.3d at 910–11.
Biestek would like us to establish a similar rule for the Sixth Circuit.
But the Seventh Circuit’s rule “has not been a popular export.” Brault v. Comm’r of Soc.
Sec., 683 F.3d 443, 449 (2d Cir. 2012). Congress specifically exempted Social Security
disability proceedings from the strictures of the Federal Rules of Evidence, allowing ALJs to
consider a broader range of potentially relevant information than would be admissible in an
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Michael J. Biestek v. Comm’r of Soc. Sec.
ordinary court of law. 42 U.S.C. § 405(b)(1) (“Evidence may be received at any hearing before
the Commissioner of Social Security even though inadmissible under rules of evidence
applicable to court procedure.”). Yet despite Congress’s explicit command, Donahue and
McKinnie effectively import a key provision of the Federal Rules of Evidence into Social
Security proceedings. As the Second Circuit noted, “[i]t is unclear . . . why the Seventh Circuit
would acknowledge in Donahue that ALJs are not bound by the Rules of Evidence, but then turn
around and require ALJs to hew so closely to [them].” Brault, 683 F.3d at 449. Other courts of
appeals have followed the Second Circuit’s lead. See Welsh v. Comm’r of Soc. Sec., 662 F.
App’x 105, 109–10 (3d Cir. 2016) (rejecting the Seventh Circuit approach due to conflict with
42 U.S.C. § 405(b)(1)); see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“An
ALJ may take administrative notice of any reliable job information, including information
provided by a [vocational expert]. A [vocational expert]’s recognized expertise provides the
necessary foundation for his or her testimony. Thus, no additional foundation is required.”
(internal citation omitted)).
Furthermore, there is little clarity on how to apply the Donahue and McKinnie standards.
The Seventh Circuit required the Commissioner to implement an evidentiary rule “similar though
not necessarily identical to that of Rule 702,” but it is unclear what, precisely, such a rule would
look like. Donahue, 279 F.3d at 446.
While it is undoubtedly true that vocational expert testimony that is “conjured out of
whole cloth” cannot be considered substantial evidence, see id., the Commissioner rightly points
out that “guarding against baseless testimony is very different” from incorporating the stringent
evidentiary requirements embodied in the Federal Rules of Evidence. Moreover, Biestek aired
his concerns to the ALJ, who accepted the vocational expert’s testimony over his objections.
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Case No. 17-1459
Michael J. Biestek v. Comm’r of Soc. Sec.
There is “no reason to suppose that the ALJ did not carefully weigh the credibility of witnesses
who testified, and the ALJ’s acceptance of [the vocational expert’s] testimony cannot be said to
have been improper.” Sias v. Sec’y of Health & Human Servs., 861 F.2d 475, 481 (6th Cir.
1988). Ultimately, responsibility for weighing the credibility of witnesses belongs to the ALJ,
who in this case acceptably fulfilled that obligation.
III. CONCLUSION
For these reasons, we AFFIRM the district court’s decision.
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