In Biestek v. Berryhill, a construction worker applied for Social Security disability benefits. Following a hearing, the Administrative Law Judge (ALJ) denied his benefit application. The ALJ decision denying social security benefits is not unusual. The real question in the case was whether or not Biestek had a fair hearing.
In Social Security hearings, the ALJ will often retain a vocational expert to provide opinion testimony. In Biestek, that vocational expert testified the worker could perform a number of different jobs in the national economy. In other words, Biestek was not vocationally disabled. The vocational expert then testified she reached her opinions based upon individual market surveys in her possession. So, on cross-examination, Biestek’s attorney asked to see the data. That’s fair. That’s a very reasonable request. Should any expert be allowed to give an opinion while refusing to show the underlying data? That’s when the ALJ intervened and refused the lawyer’s request. What we now have is an expert who provided an unsubstantiated and unsupported opinion.