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SUBSTANTIAL EVIDENCE

Biestek v. Berryhill

Issues

Can a vocational expert’s testimony in a Social Security disability benefits hearing constitute substantial evidence of job availability if the vocational expert does not provide the data underlying their conclusions upon the applicant’s request?

This case asks the Supreme Court to decide whether a vocational expert’s testimony can constitute substantial evidence of job availability when a Social Security disability claimant requests but is not suppled with the data underlying that expert’s testimony. Petitioner Michael J. Biestek contends that the substantial evidence standard requires vocational experts to produce the underlying data upon an applicant’s request; otherwise, the expert’s testimony is unverifiable and allows the expert’s word to be unlawfully substituted for actual substantial evidence. Respondent Nancy A. Berryhill, the acting Commissioner of Social Security, counters that the substantial evidence standard focuses on the contents of the hearing record, not the procedure used to make that record. Additionally, Berryhill responds that plaintiffs already effectively undercut a vocational expert’s testimony on cross-examination and thus do not need to review the expert’s data. The outcome of this case will have large implications on litigation strategy in Social Security disability claims, for both claimants and the government.

Questions as Framed for the Court by the Parties

Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised

In March 2010, Biestek applied to the Social Security Administration (“SSA”) for Supplemental Social Security Income and benefits under 40 C.F.R. § 404, alleging that he had been disabled and unable to work since October 2009. Biestek v. Comm’r of Soc. Sec. at 2.

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