On April 1, 2019, the Supreme Court made a decision on Biestek v. Berryhill a case that concerns Social Security Disability benefits. To be eligible for Social Security Disability benefits, a person has to meet the Social Security Administration’s definition of disability. For an adult (that is not blind), “the law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment(s) that makes you unable to do your past relevant work or any other substantial gainful work that exists in the national economy.” 20 C.F.R. § 404.1505. The Social Security Administration (SSA) uses vocational experts to assist the decision maker in determining if a claimant can go back to their past work or do another job that is present in the national economy considering the effects of his or her impairment(s). Vocational experts should know about the availability of jobs and what is required to do a particular job. The vocational expert should “provide impartial expert opinion evidence about the claimant’s vocational abilities” that the decision maker considers when making their determination of disability. Vocational Expert Handbook. Vocational experts use the Dictionary of Occupational Titles and other sources, as well as their experience, to base their opinion. The question presented to the Supreme Court is whether a vocational expert’s refusal, upon request of an applicant, to provide data her opinion relied upon “categorically precludes her testimony from counting as ‘substantial evidence.’” Biestek v. Berryhill 587 U.S. _____ (2019), No. 17-1184. The Court held 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.’” Id. The Court stated that whether a vocational expert’s testimony can qualify as substantial evidence must be considered on a case-by-case basis. It should take “into account all features of the vocational expert’s testimony, as well as the rest of the administrative record.” Id. The Court explains that a “refusal to disclose data, considered along with other shortcomings, will prevent a court from finding that a reasonable mind could accept the expert’s testimony,” but it in other cases it may not. Id. The majority does acknowledge that a vocational expert’s testimony would be “more reliable and probative” if supporting data was produced, and states that this should “be a best practice for SSA and its experts.” Id. Social Security’s Vocational Expert Handbook instructs vocational experts to “have available, at the hearing, any vocational resource materials that you are likely to rely upon and should be able to thoroughly explain what resources materials you used and how you arrived at your opinions.” The presiding Administrative Law Judge will need to consider this case-by-case and take into “account all features of the vocational expert’s testimony, as well as the rest of the administrative record.” Biestek v. Berryhill.
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