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Supreme Court Makes It More Difficult for Disability Applicants to Cross-Examine Vocational Experts

 Posted on April 02, 2019 in Social Security Disability

IL disability lawyerA key component of a Social Security disability hearing is the testimony of a “vocational expert” or VE. The VE's function is to assess the type and quantity of jobs available to a “hypothetical” person with the same physical and mental impairment as the disability applicant. Unfortunately, many VEs are not forthcoming with how they arrive at their conclusions. That is to say, the VE does not provide either the applicant or the Social Security administrative law judge (ALJ) with the actual data relied upon.

Kagan: Court Rejects “Categorical” Rule Requiring Disclosure of “Private” Data

The U.S. Seventh Circuit Court of Appeals, which has intermediate appellate jurisdiction over disability cases in Illinois, has long held that Social Security cannot rely on the testimony of a VE who refuses to produce their methodology upon the applicant's request. But on April 1, 2019, the U.S. Supreme Court rejected such a “categorical” rule and said that going forward, appellate courts would have to decide on a “case-by-case basis” whether a refusal to produce data is unreasonable, with appellate court deferring to the judgment of Social Security ALJs.

The case before the Supreme Court, Biestek v. Berryhill, actually originated in Michigan. The petitioner worked as a carpenter and general construction laborer. He later applied for Social Security disability benefits, citing a number of physical and mental impairments. At a hearing before the Social Security ALJ, a VE testified that based on her data, the petitioner could still perform “sedentary jobs” such as a “bench assembler or sorter,” and that there were 240,000 such positions available nationally for the former and 120,000 for the latter.

The petitioner's disability attorney asked the VE to justify her numbers. The VE replied they came from her “own individual labor market surveys.” But she refused to disclose those surveys to the petitioner as she considered them part of her confidential client files. The ALJ then said he “would not require” disclosure.

The ALJ eventually denied the petitioner's application for disability benefits, relying in part on the VE's testimony. The petitioner later took the matter to court, but both a federal district judge and the U.S. Sixth Circuit Court of Appeals–the intermediate federal appellate court for Michigan–upheld Social Security's denial.

The Supreme Court did not review the merits of the petitioner's disability claim. Its review was limited to deciding whether the Sixth Circuit erred in not following the Seventh Circuit's lead in establishing a “categorical rule” that a VE's testimony did not count as “substantial evidence” if she failed to produce the type of market survey data requested by the applicant. By a vote of 6-3, the high court affirmed the Sixth Circuit and rejected the Seventh Circuit's standard.

Writing for the majority, Justice Elena Kagan explained, “In some cases, the refusal to disclose data, considered along with other shortcomings, will undercut an expert's credibility and prevent a court from finding that 'a reasonable mind' could accept the expert's testimony. But in other cases, the refusal will have no such consequence.” It was therefore largely up to the ALJ to decide when to press the VE to disclose additional data.

Speak with an Illinois Social Security Disability Attorney Today

The Supreme Court's decision will make it more difficult for disability applicants to present their cases to Social Security. This only makes it more critical to work with an experienced Chicago disability benefits lawyer who will zealously advocate your case to Social Security. Call Pearson Disability Law, LLC, at 312-999-0999 to schedule a free consultation with a member of our team today.





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