Who is that person in the hearing and what in the heck are they talking about?
If you’ve already had a social security disability hearing in front of an administrative law judge, you’ll recall that there is a person towards the end that the judge talks to about jobs in the national economy. That person is the vocational expert (“VE”). The VE responds to the judge’s questions regarding whether you can perform a job in the national economy.
Your social security disability lawyer is given the opportunity to cross-examine the VE after the judge is done asking her questions. One of the ways that your lawyer may do this is by asking the VE for statistical support for the claims that he makes. The Supreme Court of the United States recently heard a case regarding this issue.
The case is Biestek v. Berryhill, where the Supreme Court of the United States ruled on April 1, 2019 that a VE’s refusal to provide private market-survey data upon the applicant’s request does not categorically preclude the testimony from counting as ‘substantial evidence.’”
In Biestek v. Berryhill, the applicant, Michael Biestek worked as a carpenter and construction laborer. He was denied benefits by the SSA and his case eventually made its way up to the Supreme Court. The question for the Supremes was this – even if the VE does not provide numbers substantiating the jobs that they name in response to the administrative law judge’s hypotheticals, can the VE’s testimony still be considered as “substantial evidence?” The Supremes answered, “yes.”
What does that mean?
It will be more difficult for you or your disability lawyer to successfully impeach the VE, although a good disability lawyer will be knowledgeable about other methods in which to do so. Make sure that you find a disability lawyer who knows about current case law and other methods to impeach the VE prior to your hearing.