The most confusing part of a disability hearing for claimants is always the vocational expert testimony.
After the judge and attorney question the claimant, the judge again considers the medical evidence and testimony and asks the vocational expert several questions about the claimant’s physical and mental limitations.
The vocational expert then gives an opinion about whether the claimant could perform his or her past work or any other jobs in the national economy, and the judge incorporates this opinion into the final written decision. Claimants under 50 must demonstrate that they cannot perform any of the jobs that a vocational expert testifies about, while the rules are more relaxed for those over 50.
While vocational experts often base most of their testimony on fairly recent data when talking about how many jobs are available nationally or regionally, it’s not uncommon for them to also rely simply on “experience” as the basis for an opinion with no other supporting information.
That’s what happened to Michael Biestek, a former carpenter and construction laborer, who’s now challenging that answer before the Supreme Court.
While Biestek was awarded disability benefits from 2013 onward, he was denied them from 2009-2013 because a vocational expert testified that he could perform work as a bench assembler or a sorter.
Upon further questioning from Biestek’s attorney, the vocational expert would not disclose supporting data for that opinion, claiming that her files were confidential.
The administrative law judge sided with the vocational expert that she could testify solely based on her experience.
So far, courts have upheld that opinion, but it’s unclear which way the Supreme Court will rule when they consider the case.
Oral arguments in Biestek v. Berryhill will take place this fall, with the Court’s decision likely coming out in 2019.