Disability pension: denial of the pension entitlement based on a probative multidisciplinary expert report, no bias of the expert

Facts

The complainant, born in 1966 and most recently employed as a floor layer, applied for benefits from the disability insurance in June 2014. After unsuccessful vocational measures, the IV office of the Canton of Zurich ordered a multidisciplinary assessment by the Medical Assessment Centre (MEDAS) Bern (report dated 23 September 2016, supplementary opinion dated 23 August 2017).

By decision dated 5 December 2017, the IV office denied a pension entitlement. The Social Insurance Court of the Canton of Zurich dismissed the appeal against this with judgment dated 29 August 2019.

Before the Federal Supreme Court, the complainant requests that, by setting aside the judgment of the lower court, he be granted a full pension from 1 December 2014. In the alternative, the matter should be remitted to the lower court or the IV office for supplementary medical investigations, in particular the ordering of a second expert report and a functional capacity evaluation (EFL).

The question is whether the lower court violated federal law by denying the pension entitlement. The complainant particularly complains of the bias of the neurological expert (disparaging statements, tendentious description of the expert assignment), the obvious incorrectness and inconsistency of the MEDAS report, and a violation of the investigation principle due to the lack of an EFL.

Considerations

An appeal in public law matters may complain of a violation of federal law (Art. 95 lit. a FSCA). A complaint about the establishment of facts may only be raised if the facts were established in an obviously incorrect manner or in breach of law, and if the defect could be decisive for the outcome (Art. 97 para. 1 FSCA). The Federal Supreme Court is bound by the facts established by the lower court (Art. 105 para. 1 FSCA). Findings on health status and work capacity are questions of fact, whereas compliance with the investigation principle and the rules on the assessment of evidence are legal questions subject to free review.

The cantonal court correctly set out the relevant provisions on incapacity to earn (Art. 7 GSSLA), disability (Art. 8 GSSLA in conjunction with Art. 4 para. 1 InvIA), the entitlement to a disability pension (Art. 28 InvIA), and the assessment of evidence and the probative value of medical reports.

As to the alleged bias of the neurological expert, the Federal Supreme Court held that the lower court did not identify objective grounds giving the appearance of partiality, which was not open to objection. As a medical expert, the assessor is not required to accept the insured person's statements without reservation, but must set out and evaluate discrepancies between statements and observations. The references to training, discrepancies during the assessment, and indications of response distortion and pension-seeking behaviour were therefore permissible. The summary of the initial situation in the report was also not tendentious, since the question of a work capacity of 80 or 100 percent in an adapted activity is decisive for the outcome.

As to the complaint of obvious incorrectness and inconsistency of the report, the Federal Supreme…