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U.S. Supreme Court Takes Up Vocational Testimony In Social Security Disability Hearings

Posted by John Kuhnlein | Dec 06, 2018 | 0 Comments

A case has worked its way to the United States Supreme Court that could make significant changes in the way in which Social Security conducts disability hearings. Biestek v. Berryhill presents the issue of how much a vocational expert (VE) must reveal about the basis of her testimony.  As you

Here Ye, Hear Ye

will recall, VE's appear at Social Security disability hearings to address essentially two questions: can the claimant return to any work he has done in the past fifteen years? If not, is there any work the claimant can do, given his medical impairments?

Nonsense Is Nonsense Is Nonsense

In a recent post, I showed that almost everything a VE testifies to is nonsense.  Among the reasons why VE's can offer nonsense into evidence in a court of law is that there is no meaningful way to challenge them.  What happened in Biestek is what generally happens when a claimant or his attorney push a VE to explain her job numbers: the VE replies along the lines of "because I said so." In Biestek, the VE claimed the source of her jobs numbers was confidential information from the VE's own clients.  This left Biestek with no meaningful

Only Nut Sorter I Know Of

way to challenge the VE's highly improbable testimony that he could be a "nut sorter."

Yes, the VE really said that Biestek could be a nut sorter.

The Supreme Court will now decide if the VE's have to provide some sort of credible rationale for their jobs numbers. Oral argument was on December 4th. A decision is likely late next Spring.

Don't Get Too Excited

Before you get too excited about what a decision in Biestek's favor would mean, consider the practical applications of such a ruling. There really is no objective evidence to support what a VE testifies about. It really is just a very meager magic trick. So, imagine if the Supreme Court decides that VEs have to provide something that does not exist. What happens then? My guess is even more delay. If VE's have to take the time to derive genuine job numbers and then be prepared to defend those numbers with objective data, the whole process could grind to a halt.  VE's mostly do their jobs now by reciting the same few jobs over and over again all day long. If that is no longer acceptable, Social Security might have

Not More Delay!

to hold fewer hearings and, thus more delay.

Maybe There Really Are No Nut Sorting Jobs

On the other hand, VE's might have to admit that no one really works as nut sorter. This would theoretically mean more wins for more claimants. But, how long do you think Social Security would allow that to go on before they changed the rules again? 

One way or another, Biestek v. Berryhill is going to shake things up. We won't know for a long time what the practical results are going to be.

About the Author

John Kuhnlein

Since 1992, I have been helping the people of Southern Arizona get the benefits they are due. Before devoting all my efforts to assisting people with Social Security disability claims, I also handled such complex lawsuits as medical malpractice and products liability. I brought to my Social Security cases all the skills and attention to detail that I developed in the courtroom. I approach each Social Security disability case as if it were a million-dollar lawsuit. For the people trying to get Social Security benefits, their claim is every bit as important. Because I have personally handled so many Social Security cases, I have refined the skills I need to win your case for you. I have helped people win cases for every kind of ailment from arthritis to valley fever. At present, I am focused on helping those persons with neurological and orthopedic disorders. Because claims for people over age fifty bring additional complications, I particularly seek out those cases to work on. I regularly write about back and spine conditions on my blog. I actively seek out the latest information about orthopedic and neurological disorders to ensure I can represent my clients as effectively as possible. Because of my current focus, I regret that I am not able to take any cases for mental disorders. If you are over age fifty and suffer from any orthopedic or neurological disorder, please contact me at once.


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