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Biestek v. Berryhill:  Did The Supreme Court Open The Door To Vocational Charlatans?

Biestek v. Berryhill: Did The Supreme Court Open The Door To Vocational Charlatans?

Blackwell Law Firm -- Alabama Personal Injury LawyersWhat’s The Deal With Biestek v. Berryhill?

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.

When the appeal reached our U.S. Supreme Court, the majority noted that experts in Federal Court must produce the data considered in reaching their conclusions. Yet, the majority then declined to extend the same safeguards to administrative proceedings like Social Security hearings. I understand that administrative proceedings (like Social Security hearings) are less formal than court. I understand these proceedings often have relaxed rules. That’s no excuse for denying a party his or her substantive ability to question an expert on the basis of the expert’s opinions.

Why Is The Decision Important?

The Supreme Court opinion denying Mr. Biestek a fair proceeding was not unanimous. Thankfully, three Justices saw the injustice. My first thought when I read the majority opinion was that none of the Justices understood how a real hearing worked. No doubt, real trial experience should be an important factor in judicial appointments.

While I don’t generally handle social security hearings, I routinely try personal injury and workers’ compensation cases in Alabama courtrooms. Many of these courtroom cases involve vocational experts. I’ve cross-examined more than I can count. Some of these experts are very good. Others clearly are not. A few of them are so bad — they cannot explain their own opinions. They are simply charlatans providing an opinion. In courtroom settings (as opposed to administrative hearings), both the Alabama and Federal Rules of Evidence have certain requirements that experts produce the data supporting their opinions. If we are going to have a fair hearing, then the basis and data for the expert’s opinions must be produced, reviewed and questioned.

If you plan to cross-examine a vocational expert in a courtroom, ask for the data. Often, the expert cannot support his or her opinions. Even where the expert can “support” his or her opinions, they may have skewed the data to do so. I catch too many vocational experts on the witness stand misconstruing their data to skew results. Those “gotcha” moments are so much fun! Fun aside, these issues can make all the difference in your result at trial. With an opposing vocational expert, find out:

  • The results of any academic testing performed on your client.
  • The transferable skills assigned your client based on past work and experience.
  • The labor market surveys upon which any opinions are based.
  • The specific physical limitations used by the expert in reviewing work capacity.
  • The overall numbers and calculations upon which any disability opinions are based.

Get to the heart of how the expert arrived at his or her opinions. As a lawyer, if you know your case and client, you can readily confront a charlatan expert with the true facts at trial. That’s why our firm believes so strongly in preparation. As an injured person with serious issues, look for a lawyer who understands vocational issues and has practical experience at trial with these experts.


From its office in Huntsville, the Blackwell Law Firm represents injured clients across Alabama. Many of these cases are car accident and workers’ compensation cases involving clients suffering disability.