Gardberg & Kemmerly, P.C. Attorneys at Law

Biestek v. Berryhill

The United States Supreme Court has affirmed the 6th Circuit's decision in the case of Biestek v. Berryhill. In a 6 to 3 decision, the United States Supreme Court found that "a vocational expert's refusal to provide private market-survey data upon the applicant's request does not categorically preclude the testimony from counting as 'substantial evidence.'" Justice Elena Kagan wrote the majority opinion. The Supreme Court in its decision refused to adopt a categorical rule as had been done in the 7th Circuit. The Supreme Court further explained that there must be a case-by-case basis when determining whether the vocational expert's testimony can qualify as substantial evidence. In applying a case-by-case basis, the vocational expert's testimony as well as the rest of the administrative record must be taken into account. The Court stated that in some cases, the refusal to disclose data taken into consideration with other short comings would prevent the court from finding that 'a reasonable mind' could accept the expert's testimony. However, in this specific case, the refusal of a vocational expert to provide private market-survey data did not preclude the Administrative Law Judge from accepting the vocational expert's testimony as substantial evidence.

Although the Supreme Court refused to establish a categorical rule instead of relying on a case-by-case standard, it did acknowledge that a vocational expert's testimony would be 'more reliable and probative' if the vocational expert had produced the data. "That would be a best practice for the SSA and its experts." The Supreme Court also referenced the Social Security Administration's Vocational Expert Handbook from 2017 wherein the Social Security Administration stated that a vocational expert should have available at the hearing any materials that he or she would rely on when giving testimony.

For more information on the role of vocational experts in a Social Security disability hearing, contact an experienced Social Security disability attorney at Gardberg & Kemmerly, P.C. today at 251-343-1111 for a free case evaluation. Gardberg & Kemmerly, P.C. represents Social Security disability claimants in Alabama, Mississippi, Florida, and Louisiana at all levels of the disability process from initial application to appeals to Federal Court. 

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