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New Supreme Court Decision Regarding Vocational Expert Testimony

To determine if a claimant can perform a job despite limitations from a health problem, the Administrative Law Judge (“ALJ”) will hear testimony from a vocational expert. The vocational expert is an impartial expert who has a working knowledge of the existence and demands of jobs in the national economy. When offering testimony, the vocational expert can offer data from publicly available sources and also provide insight from his or her own private experience in job placement. The Social Security Agency’s findings regarding a claimant’s ability to work are conclusive as long as they are supported by “substantial evidence.”

On April 1, 2019, the United States Supreme Court decided Biestek v. Berryhill. In this case, the vocational expert testified to particular sedentary jobs the claimant could still perform, based on the expert’s own individual labor market surveys – a private set of data she was not willing to produce at the hearing. The claimant argued that the vocational expert’s testimony could not be supported by “substantial evidence” because the data was never produced.

The Supreme Court rejected this argument and determined that a vocational expert’s opinion may constitute “substantial evidence” supporting an ALJ’s findings, even when the expert refuses to disclose the data underlying the opinion. The fact that the expert refused to disclose her private data did not discount her credibility. The claimant’s attorney still had the opportunity to meaningfully cross-examine the expert.

The Supreme Court stated that it was the “best practice” for the Social Security Administration and its experts to produce all supporting data. But it refused to adopt a categorical rule that the testimony of a Vocational Expert who refused a request for supporting data could not meet the threshold of “substantial evidence” to uphold an ALJ decision.

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