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Krell v. Saul

United States Court of Appeals, Seventh Circuit

July 24, 2019

Joseph Krell, Plaintiff-Appellee,
v.
Andrew M. Saul, Commissioner of Social Security, Defendant-Appellant.

          Argued September 26, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:16-cv-00951 - Nancy Joseph, Magistrate Judge.

          Before Easterbrook, Rovner, and St. Eve, Circuit Judges.

          St. Eve, Circuit Judge.

         We focus here on an issue involving a well-known figure in Social Security cases: the vocational expert. Specifically, we address whether an administrative law judge (ALJ) can decline to issue a subpoena requiring a vocational expert to produce his underlying data sources. Given recent Supreme Court precedent, we conclude that, here, the ALJ did not abuse his discretion by denying a request to issue such a subpoena. See Biestek v. Berryhill, 139 S.Ct. 1148 (2019).

         I. Background

         A. The Relevant Framework

         A person suffering from a disability that renders him unable to work may apply to the Social Security Administration for disability benefits. If a claimant's application is denied initially and on reconsideration, he may request a hearing before an ALJ. See 42 U.S.C. § 405(b)(1); see also Smith v. Berryhill, 139 S.Ct. 1765, 1772 (2019). The ALJ is responsible for conducting a five-step sequential evaluation process. Step one is to determine whether the claimant is currently engaging in gainful employment. At steps two and three, the ALJ considers the severity of the disability. At step four, the ALJ determines what the claimant's disability leaves him able to do, i.e., his residual functional capacity, and whether given that capacity he may still perform his past work. And last, at step five, the ALJ assesses the claimant's residual functional capacity, age, education, and work experience to determine whether the claimant can perform work that is available in significant numbers in the national economy. 20 C.F.R. § 404.1520; Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).

         The final step is the crucial one in this case. It is also the only step for which the Administration bears the burden of proof. Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009). To assess a claimant's ability to continue working, the ALJ often relies on the testimony of vocational experts. See Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011). Vocational experts must have specialized and current knowledge of "working conditions and physical demands of various jobs;... the existence and numbers of those jobs in the national economy; and involvement in or knowledge of placing adult workers with disabilities into jobs." Biestek, 139 S.Ct. at 1152 (internal quotation marks omitted); see also Chavez v. Berryhill, 895 F.3d 962, 964 (7th Cir. 2018), cert, denied, 139 S.Ct. 808 (2019). In providing assessments, vocational experts may rely on publicly available sources as well as data developed through their own experiences and research. See Biestek, 139 S.Ct. at 1152 (citing Social Security Ruling, SSR 00-4p, 65 Fed. Reg. 75760 (2000)).

         B. Joseph Krell's Application

         Joseph Krell, a former ironworker in Wisconsin, applied for disability benefits due to problems with his knee. His application was denied initially and on reconsideration. He then requested a hearing before an ALJ.

         In October 2014, Krell was notified that the ALJ had scheduled his hearing in December 2014. The notice stated that a vocational expert would testify at the hearing. It also stated that Krell had the right to request a subpoena for documents or testimony "that you reasonably need to present your case fully." If Krell wished to obtain a subpoena, he could write to the ALJ and describe:

• "What documents you need and/or who the witnesses ...

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