The Importance of Challenging a Vocational Expert's Figures in a Disability Hearing

 Posted on September 20, 2019 in Social Security Disability

Earlier this year we discussed a major U.S. Supreme Court ruling that impacts the rights of individuals applying for Social Security disability benefits. In Biestek v. Berryhill, the Court said vocational experts (VEs) who testify in disability hearings are not categorically required to disclose the underlying data used in assessing the applicant's hypothetical job prospects. Nevertheless, the Court said an administrative law judge or reviewing court could look at a VEs refusal to disclose such data when assessing the overall credibility of their testimony.

Magistrate Finds ALJ "Failed to Respond" to Disability Applicant's Concerns Over Job Estimates

A more recent decision from a federal magistrate judge here in Illinois, Jerry P. v. Saul, offers some guidance as to how lower courts are applying the Biestek decision. The plaintiff in this case applied for disability benefits in 2014. Following a 2016 hearing, a Social Security administrative law judge (ALJ) rejected the plaintiff's application.

The ALJ relied heavily on the testimony of a VE, who said the plaintiff could still work as a "hand packer, assembler, or sorter" despite his impairments. The VE further stated such jobs "existed in significant numbers in the national economy" and offered specific estimates for each of the three occupations.

The plaintiff's disability lawyer cross-examined the VE on the source of her numbers. She claimed they came from the U.S. Census Bureau and the U.S. Department of Labor. The attorney pressed further, pointing out there was no correlation between the occupational titles cited by the VE and the actual jobs data reported by the Labor Department. More to the point, the expert's figures did not distinguish between part-time and full-time positions, which was critical given the ALJ's finding the plaintiff was somehow capable of performing full-time work.

As the magistrate explained, once the plaintiff's lawyer raised these issues about the VE's conclusions, this "triggers an ALJ's duty to make an inquiry as to the reliability of these conclusions." Yet here, the ALJ "failed to respond to plaintiff's concerns with any real muster." Rather, the ALJ simply declared the VE's numbers reliable because she "was qualified to give the job estimates she provided" and she "relied on data from widely accepted sources."

This was not good enough, the magistrate said. The VE "did not substantiate her findings with a written report or current DOT information" and offered only "vague responses" to the cross-examination of the plaintiff's lawyer. Under the circumstances, this was not enough to comply with the Supreme Court's mandate in Biestek, and the plaintiff was therefore entitled to a new disability hearing.

Speak with a Chicago Disability Benefits Lawyer Today

The use of questionable numbers by vocational experts is not a new problem. And the Biestek decision only makes it more incumbent on disability applicants to actively challenge the source of these figures. An experienced Chicago Social Security disability attorney can provide invaluable assistance and advice in this area. Contact Pearson Disability Law, LLC, at 312-999-0999 to schedule a free consultation with a member of our team today.

Source:

https://scholar.google.com/scholar_case?case=3138221939898275906