Social Security Denies Applicant's Attempt to Subpoena Vocational Expert's Documents

 Posted on July 29, 2019 in Denied Social Security Benefits

In a recent post, we discussed a U.S. Supreme Court decision that held a vocational expert who testifies at a Social Security disability benefits hearing is not “categorically” required to disclose the actual data supporting their analysis. Some courts, including those here in Illinois, had previously enforced such a categorical rule. But under the Supreme Court's decision, Biestek v. Berryhill, Social Security administrative law judges (ALJs) have wide discretion to decide whether or not such data is relevant to a particular case.

Supreme Court Ruling Means Applicants Cannot Simply “Demand” Access to Data

The Chicago-based U.S. Seventh Circuit Court of Appeals recently applied Biestek to reject an unsuccessful disability applicant's request for a new hearing. The plaintiff in this case, Krell v. Saul, argued the ALJ erred by refusing to issue a subpoena to the vocational expert who testified at his disability hearing.

The plaintiff is a Wisconsin man who was previously employed as an ironworker. He filed for disability benefits due to a knee impairment. Prior to a 2014 hearing, the plaintiff's attorney asked the ALJ overseeing the case to issue a subpoena for “certain documents” upon which the vocational expert who was scheduled to testify “may rely” on in forming their opinions. The attorney explained such documents were necessary to facilitate the plaintiff's ability to properly cross-examine the expert.

The ALJ declined to issue the subpoena, holding the plaintiff's request “was deficient because it had not specified what the [requested] documents would show and why these facts could not be shown without a subpoena.”

At the hearing itself, the vocational expert testified that a hypothetical person with the plaintiff's impairments could still find work “as a mail clerk, unskilled inspector, or retail clerk,” and that approximately 73,000 such jobs existed in Wisconsin. Taking this testimony into account, the ALJ denied the plaintiff's application for disability benefits.

On appeal to the Seventh Circuit, the plaintiff argued he should have been allowed to see the data supporting the vocational expert's analysis. The Court of Appeals, however, said it was bound by the Supreme Court's Biestek ruling to uphold the ALJ's decision. The appeals court noted that at the hearing, the plaintiff “had not in fact shown why it was necessary for the expert to produce his sources,” as opposed to simply asking the expert about the sources. The plaintiff also had an opportunity to challenge the expert's evidence post-hearing.

The Seventh Circuit noted that under Biestek, vocational experts are not required to produce their underlying source data “on demand.” The ALJ may certainly consider a refusal to provide such sources when assessing the reliability of the expert's testimony. But in this case, the plaintiff failed to establish why such data was “necessary.”

Get Advice from an Illinois Social Security Disability Attorney Today

It is important to keep in mind that the plaintiff's hearing in Krell predated the Biestek decision by several years. ALJs and judges will continue to assess the impact of Biestek for many years to come. That is why it is critical to work with an experienced Chicago disability benefits lawyer who keeps up-to-date with the law in this area. Contact Pearson Disability Law, LLC, at 312-999-0999 today to schedule a free consultation.

Source:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D07-24/C:18-1100:J:St__Eve:aut:T:fnOp:N:2373506:S:0